The Indian Constituent Assembly: Deliberations on Democracy 9781138224827, 1138224820

Table of contents :
Introduction Udit Bhatia 1. "We the People?": Politics and the Conundrum of Framing a Constitution on the Eve of Decolonization Arvind Elangovan 2. Conflict not Consensus: Towards a Political Economy of the Making of the Indian Constitution Sandipto Dasgupta 3. Pride and Prejudice in Austin's Cornerstone: Passions in the Constituent Assembly of India Vatsal Naresh 4. The Antecedents of Social Rights in India Neera Chandhoke 5. The Conservative Constitution: Freedom of Speech and the Constituent Assembly Debates Gautam Bhatia 6. Freedom of Speech in the Early Constitution: A Study of the Constitution (First Amendment) Bill Arudra Burra 7. Between Inequality and Identity: The Indian Constituent Assembly Debates and Religious Difference, 1946-1950 Shabnum Tejani 8. 'We the People': Seamless Webs and Social Revolution in India's Constituent Assembly Debates Kalyani Ramnath 9. India's Republican Moment Manjeet Ramgotra

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THE INDIAN CONSTITUENT ASSEMBLY

The Indian Constituent Assembly laid the foundations of the largest democracy in the world. The debates between the members of the Assembly form the bedrock of the Indian Constitution. The chapters in this volume propose a range of methodological perspectives from which these critical debates might be read. Adopting a multidisciplinary approach, they explore themes such as party politics, ideas of rights, including caste and minority rights, social justice and the philosophy of free speech. A major contribution to the study of Indian politics, this book will be indispensable to political scientists, political theorists, legal scholars, historians, lawyers and general readers interested in the history of the Indian Constitution. Udit Bhatia is Lecturer in Political Theory at Lady Margaret Hall, University of Oxford, UK. He is a doctoral candidate at the Department of Politics and International Relations at Oxford, and his research interests lie at the intersections of democratic theory, political representation and social epistemology. He is currently examining the normative case against exclusion of persons from democratic citizenship on the basis of epistemic inferiority.

THE INDIAN CONSTITUENT ASSEMBLY Deliberations on Democracy

Edited by Udit Bhatia

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 selection and editorial matter, Udit Bhatia; individual chapters, the contributors The right of Udit Bhatia to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted 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: 978-1-138-22482-7 (hbk) ISBN: 978-1-315-15790-0 (ebk) Typeset in Galliard by Apex CoVantage, LLC

CONTENTS

Notes on contributorsvii Acknowledgements ix Introduction

1

UDIT BHATIA

1 “We the people?”: politics and the conundrum of framing a constitution on the eve of decolonisation

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ARVIND ELANGOVAN

2 Conflict, not consensus: towards a political economy of the making of the Indian Constitution

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SANDIPTO DASGUPTA

3 Pride and prejudice in Austin’s cornerstone: passions in the Constituent Assembly of India

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VATSAL NARESH

4 The antecedents of social rights in India

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NEERA CHANDHOKE

5 The conservative constitution: freedom of speech and the Constituent Assembly Debates GAUTAM BHATIA

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C ontents

6 Freedom of speech in the early constitution: a study of the Constitution (First Amendment) Bill

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ARUDRA BURRA

7 Between inequality and identity: the Indian Constituent Assembly Debates and religious difference, 1946–50

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SHABNUM TEJANI

8 “We the people”: seamless webs and social revolution in India’s Constituent Assembly Debates

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KALYANI RAMNATH

9 India’s republican moment

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MANJEET RAMGOTRA

Index223

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CONTRIBUTORS

Gautam Bhatia is a practising lawyer and legal academic based in New Delhi, India. He specialises in Indian constitutional law. He graduated from the National Law School of India University, Bengaluru, India; read for the BCL and LLM degrees at the University of Oxford, UK, and Yale Law School, USA, respectively; and has taught as a visiting faculty member at the National Law School of India University and the West Bengal National University of Juridical Sciences. His articles have appeared in the Oxford Handbook for the Indian Constitution, The Australian Journal of Legal Philosophy, The Asian Journal of Comparative Law, Global Constitutionalism, and Constellations, and some are forthcoming. He is the author of Offend, Shock, or Disturb: Free Speech under the Indian Constitution (2015). Arudra Burra is Assistant Professor of Philosophy at the Department of Humanities and Social Sciences, Indian Institute of Technology Delhi, India. He has a Doctorate in Philosophy from the Princeton University, USA, and a Juris Doctor from the Yale Law School, USA. His research interests explore different facets of the liberal tradition: the concepts of coercion, deception and consent, and their role in legal and moral argument; the continuity of law and legal institutions across changes of political regime and the nature of civil liberties, particularly freedom of speech. Neera Chandhoke is former Professor of Political Science, University of Delhi, India. She is the author of Democracy and Revolutionary Politics (2015), Contested Secessions: Democracy, Rights, Self-Determination and Kashmir (2012) and The Conceits of Civil Society (2003) among others. Sandipto Dasgupta is Assistant Professor of Political Science at Ashoka University, New Delhi, India. He is currently writing a book on the history and theory of the making of the Indian Constitution.

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C ontributors

Arvind Elangovan teaches History at Wright State University in Dayton, Ohio, USA. He is interested in political and constitutional histories of nineteenth- and twentieth-century India and is currently working on his book on Sir B. N. Rau and the making of the Indian Constitution. Vatsal Naresh is a graduate student in Political Science at Yale University, USA. He also has degrees in History and Political Science from St. Stephen’s College, University of Delhi, India, and Columbia University, USA. His research focuses on the areas of democratic institutions, political realism and constitution making. Before joining Yale University, he was graduate researcher at the Center for Democracy, Toleration, and Religion, New York, USA. Manjeet Ramgotra is Senior Teaching Fellow in Political Theory at the School of Oriental and African Studies (SOAS), University of London, UK. Her work examines republicanism in the history of ideas. She has published articles on “The Conservative Roots of Republicanism”, “Republic and Empire in Montesquieu’s Spirit of the Laws”, on Rousseau and on diversifying the political theory curriculum. Presently, she is working on a project that considers why predominant Western understandings of republicanism elide postcolonial articulations and experiences of republicanism as well as a book on hierarchy and empire in the republican theories of Cicero, Machiavelli and Montesquieu. Kalyani Ramnath is a doctoral researcher in History at Princeton University, USA. She graduated from the National Law School of India University, India, and Yale Law School, USA, with degrees in law. Between 2010 and 2012, she was a faculty member at the National Law School of India University teaching legal and constitutional history. While this continues to be her primary research interest, she is also involved in projects on comparative constitutional law and writes about histories of criminal procedure in India and Sri Lanka. Shabnum Tejani is Senior Lecturer in the History of Modern South Asia at the School of Oriental and African Studies, University of London, UK. She is the author of Indian Secularism: A Social and Intellectual History, 1890–1950 (2012). Her work has been published in South Asia Research, Journal of Colonialism and History, and Economic and Political Weekly.

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ACKNOWLEDGEMENTS

I am grateful to Jon Elster, Rohit De, and David Owen for emphasising the wide range of methodological perspectives from which Constitutionmaking can be approached. At Oxford, Liz Frazer, Tarun Khaitan, Jinal Dadiya, Sanya Samtani and Bruno Leipold have been terrific sources of learning on constitutions and democracy. I am also grateful to Rochana Bajpai, Humeira Iqtidar, Leigh Jenco and other members of the Comparative Political Theory Group in London. Harshavardan Raghunandhan, Utsarjana Mutsuddi and Ayesha Sheth gave valuable research assistance for this volume. I am also indebted to Aakash Chakrabarty at Routledge, who has been extremely helpful as this project developed. Essays by Kalyani Ramnath and Shabnum Tejani were previously published by South Asia Research. SAGE Journals very kindly permitted us to reprint these here. Finally, I am grateful to the contributors of this volume for their time, effort and patience.

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INTRODUCTION Udit Bhatia

Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did beyond amendment. – Thomas Jefferson

(I) Constituent assemblies appear to be queer bodies. Why is it that a body of men – mostly men – who met at some point several decades before us – are able to determine the norms that regulate our political process? On some accounts, ordinary legislation enjoys prima facie democratic legitimacy on grounds that it is a product of a constitutionally encoded process. Each legislative act can be traced back to a previous legislative act or a secondary rule specifying how legislation must be enacted. But what about the original act of writing the constitution which was not, itself, a product of any such procedure1? While philosophers of law have debated this problem in considerable detail, there are other distinctively political problems that constituent assemblies present. Framers of Constitutions draw upon certain notions of the past as legitimising the normative foundations they strive to build for an indefinite future. We, who occupy that future, invest in forging our connections with that past – of the political circumstances inhabited by framers of our Constituent Assembly. They are seen as our “founding fathers”, the cornerstones of the nation and mostly placed beyond the kind of criticism we might extend to our political contemporaries. But there is another political debate within which constituent assemblies are implicated beyond one that centres around their queer constituent power. The foundational moment of any constitution can become a crucial battleground in the interpretation and use of constitutional vocabulary. Its

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role in the interpretation of constitutions in a judicial context has been the subject of considerable controversy in legal theory. Originalists emphasise that the “original meaning” of the text as intended by the framers ought to carry considerable weight in the interpretation of a constitution. Against this, legal theorists like Dworkin have emphasised the living nature of a constitution. They argue that it requires interpretation in the light of previously endorsed legal principles. But once again, foundational moments are implicated in distinctively political controversies around interpretation. These controversies take place not in the judges’ chambers or philosophy seminars but in the acrimony of legislative chambers and political debates. The anti-originalist criticisms developed in the former kinds of contests do not transfer neatly to political debates where foundational figures make an appearance. The constituent moment is understood not just as an aid to interpretation of constitutional provisions but also as a politically charged event that legitimises several other actions: “We want to build the country envisaged by our founding fathers”, one often hears in political speeches defending various kinds of policies. Foundation myths glorify certain normative projects like the “pursuit of liberty”, or the “quest for equality” as the intention of the framers, hiding the more turbulent politics within which constitutions emerged. First, historicising the Assembly’s proceedings highlights the contingency of the political decisions, which framed the eventual text. This deprives constituent assemblies of some of the mysticism that accompanies narratives surrounding constituent power. This does not mean that the acrimony of daily politics deprives legislation of its dignity. Indeed, as Waldron argues, the conflict over the text and the accompanying process of aggregating votes is constitutive of legislation’s authority. Rather, it emphasises a crucial similarity between constituent and constituted power. Of course, similarity in this respect does not entirely dissolve the difference between the two. But it does emphasise the need to find other resources to privilege the foundational moment if at all it is to enjoy such status. Secondly, locating the framers in their historical and political context further strips them of some of the mystique that is imposed upon “founding fathers”. It serves as a reminder that they were political agents with interests, agendas and faults, like other political agents.

(II) How one ought to read the Constituent Assembly Debates (CADs) is by no means unproblematic even once we have some idea of our aim in doing so. One might explore the discursive, political or institutional features of the debates. Let me begin by discussing the first two. Jon Elster’s work 2

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on constituent assemblies distinguishes between two kinds of speech acts found in their debates: arguing and bargaining.2 This distinction draws upon the Habermasian distinction between communicative and strategic action. Communicative action is aimed at the search for truth, views sincerity as a normative presupposition and involves reasoned argument, consensus and cooperation. Strategic action, on the other hand, involves the pursuit of one’s own goals. When political actors bargain, they communicate “for the purpose of forcing or inducing the opponent to accept one’s claim”. In doing so, they rely on threats and promises that will have to be executed outside the deliberative body. Studying these two practices leads to two distinct methodological approaches towards constituent assemblies. One might view a constituent assembly as a discursive body, where what is of interest is the range of arguments, rather than the bargains struck by its members. On this reading, such assemblies are forums for exchanging ideas and testing the force of the better argument. Roberto Gargarella’s work, for instance, looks at a range of constituent assemblies – in the United States, Argentina, Bolivia and Colombia, among others – to assess how they addressed two conflicting views: one that endorsed individual autonomy and rights but restricted the principle of majority rule; and the other, that openly favoured the principle of majoritarian constitutional organisation.3 In the Indian context, Rochana Bajpai’s pioneering study on the treatment of minority rights in the Constituent Assembly adopts a similar discursive approach.4 Bajpai suggests that concern for national unity dominated the Assembly’s debates, as a result of which other concepts like equality, justice and development were all conceptualised in ways that militated against the provision of groupdifferentiated rights for minorities. On the other hand, one might focus on the Constituent Assembly as a political body, where the focus is on the interests sought to be pursued, and the strategies adopted in such pursuit. In such approaches, the Assembly is less a deliberative forum where ideas are exchanged in an ideal speech situation, and more a space where realpolitik is constantly at work. Extending Elster’s emphasis on Madisonian factions or interests in constitutionmaking bodies, Gianluca Parolin examines the constitutional transitions in three countries: Tunisia, Egypt and Libya.5 He argues that they all demonstrate how political forces attempt to appropriate key decisions, leading to undue advantages in the drafting stage. In the Indian case, Shefali Jha argues that cultural and educational rights were viewed as a compromise: since these had been awarded, political safeguards in the form of affirmative action in legislatures were no longer necessary.6 Finally, one might focus on institutional features of constituent assemblies. Recent work has focused on the optimal design of these bodies, 3

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engaging with historical as well as contemporary cases. Elster’s work explores constituent assemblies in America and France, and urges that such bodies ought to be “hour-glass” shaped: they should be designed such that they allow for open consultations during and after the drafting process but ensure exclusive and closed-door moments of writing by the select few.7 Helene Landemore investigates the recent constitution-making process in Iceland, where drafters for the constitution were selected from a pool of 522 citizens that purposefully excluded professional politicians.8 Landemore offers a range of institutional prescriptions: permitting greater time for deliberation, ensuring correspondence between the National Council’s opinions and those of the wider public, and providing for the inclusion of experts. These historical as well as contemporary investigations are particularly urgent today as new constituent assemblies have emerged around the world: in Nepal, Tunisia and Egypt, just to name a few. Investigating the institutional features of the Indian Constituent Assembly would involve asking, for instance, how its particular structural features such as its various sub-committees, or the involvement of a drafting committee, impacted upon the decisions it adopted. These features are not always strictly part of the Assembly, or codified through formal rules. Take for instance, the Congress’s Assembly Party, which provided a forum where disagreements over the Constituent Assembly’s proceedings could be openly discussed. There were also informal institutional features, such as the role it allowed for senior leaders, termed by Austin as “oligarchs” within the Assembly.9

(III) The chapters in this volume cover a range of methodological perspectives from which the CADs might be read. Adopting the second approach highlighted in the previous section, Arvind Elangovan criticises two possible ways of reading the Assembly’s proceedings. The first suggests that late colonial Indian politics just prior to constitution making was unilaterally directed towards independence, giving way to a normative process of constitution making, which then led to the founding of the Indian Republic in 1950. In this view, late colonial politics had little or no relation to postcolonial politics. The second related idea suggests that the Constituent Assembly was a unique entity in its ability to rise above the politics of the times to frame a constitution for a divided society. Elangovan argues that both these ideas are too simplistic and fail to account for the nature of the political context prior to decolonisation. He argues that the Constituent Assembly, far from being a normative body, was politically predetermined from the beginning, and that its functioning cannot be explained without the politics of the late colonial period. 4

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Similarly, Sandipto Dasgupta argues against an excessive normativisation of the debates – treating their outcome as a coming together of ideas – and suggests that we need to play closer attention to the social relations of those who drove the political process within the Constituent Assembly. His chapter outlines the three major “fractures” of the political economy of transition that provide an analytical framework for the constitution-making process. The first was a fractured social condition, where differential levels of development and property regimes existed side by side. The second was a fractured political coalition, generated by the inability of the failure of the nationalist movement to produce a hegemonic consensus among the masses regarding the new social and political order. The third was a fracture among the elites themselves, caused by the presence of three dominant groups in society, none of which could claim a commanding position either socially or politically. These were the state managerial elite, the industrial capitalists and the rural landowning elites. Dasgupta argues that these fractures explain why the assumption of any ideological consensus regarding the constitution-making process is necessarily flawed. Vatsal Naresh, on the other hand, examines institutional features of the Constituent Assembly. His chapter explores how “hot emotions” like anger, fear and enthusiasm were mitigated by the Constituent Assembly. He highlights arrangements such as its insertion of time delays in the constitutionmaking process, through discussion on drafts and further deliberation in committees. He also emphasises its separation of legislative and executive powers as responsible for the mitigation of hot emotions. On the other hand, Naresh argues that “cold emotions” like prejudice and fear impacted the Assembly’s proceedings in crucial ways. In doing so, he contributes to the growing literature on the role of passions in the framing of laws, particularly in the literature on constituent assemblies other than India’s. Chapters by Neera Chandhoke and Gautam Bhatia engage with ways in which the Indian Constitution broke from the past. Why, Chandhoke asks, did a nationalist movement constituted by the participation of the masses reject the constitutionalisation of social rights? This problem is particularly perplexing once we note the presence of such rights in the draft bill of rights published by the Motilal Nehru Committee. Further, the Constituent Assembly’s Objectives Resolution resulted in strong hopes that social rights would form an intrinsic part of the Constitution’s chapter on fundamental rights. The partition resulted in the success of identity politics, a phenomenon that thrives till today, as people draw upon identity mobilise to demand collective benefits from the state. This mobilisation, however, did not lead to a more progressive class politics. Yet, Chandhoke argues, there is more to the story about the eventual elimination of social rights from the Constitution. The key to this puzzle lies in two features of the 5

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Congress party. First, struggles initiated by the leadership were controlled and contained by the coalition of influential interests within the party. Secondly, the Congress leadership was extremely uncomfortable about popular struggles led by non-Congress organisations. She highlights its dismissal of the student and worker uprising in Calcutta in 1945 and 1946 and the postal workers’ strike of July 1946 as evidence of this discomfort. Gautam Bhatia’s chapter points to the emphasis placed on freedom of speech by nationalist leaders, particularly in their opposition to sedition and press censorship laws under the colonial government. Why then did the framers of the Indian Constitution impose considerable qualifications on the freedom of speech? He argues that colonial free speech regulation cleaved along two lines: the first aimed at defending the legitimacy of the regime from a rising nationalist movement; the second built upon the idea of colonial difference, viewing Indian audiences as incapable of responding to the speech in an autonomous manner. While framers of the Constituent Assembly eschewed the latter, they were able to draw upon a version of the former. They urged that a transformation in who ruled – Indians instead of foreigners – meant that leeway ought to be afforded to the government in resisting speech that attacked its legitimacy. Bhatia also connects the conservativeness of the Constituent Assembly to the Supreme Court’s similar interpretation of free speech laws in India. He urges that both rely upon similar discursive strategies to allow restrictions to swallow up the right granted by the Constitution in the first place. While Gautam Bhatia’s chapter focuses on the framing of the free speech provision in the Constituent Assembly, Arudra Burra examines how this was amended – through the first ever amendment to the Constitution – by India’s Provisional Parliament. Once the Constituent Assembly, which had also acted simultaneously as the Dominion Parliament, completed its work, the former was dissolved. With the adoption of the Constitution, India was no longer a dominion, and, therefore, the Dominion Parliament now came to be known as the “Provisional Parliament”. It was provisional insofar as it was not elected under the framework enacted in the new Constitution. The first amendment it enacted has been viewed as controversial for the insertion of a “public order” exception to the constitutional guarantee of freedom of speech. But Burra suggests that the Constituent Assembly’s oversight in drafting the provision on free speech meant that some form of constitutional amendment was, in fact, necessary. Chapters by Shabnum Tejani, Kalyani Ramnath and Manjeet Ramgotra examine discursive features of the Assembly’s debates, unpacking terms such as “minorities”, “the people” and “republic” respectively. Tejani argues that it remained unclear what recognition of “minority” status was meant to achieve in postcolonial India and what it signified. In failing to 6

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recognise the claims of religious minorities for their equality, the Constituent Assembly reified their position as permanently unequal communities in the newly independent state. This failure resulted from a conceptualisation of “religious minorities” as fixed entities, antithetical to integration with the new nation, and a misrecognition of their claims for social and educational improvement. She contrasts this with reservations for the Scheduled Castes and Tribes and the so-called “other backward classes”, which were seen as instrumental in integrating beneficiaries into the new nations, creating equality of opportunity in politically and educationally nascent populations. Asking who are “the people” in whose name the Indian Constitution was drafted, Ramnath highlights the fragmented image of “the people” as a multivocal, multivalent reflection of imaginations and expectations attributed to people within and behind the Constituent Assembly. She argues that the aspirations of the actual Constitution makers find clearer expression in the constitutional text than the perceptions of “the people” in whose name such law making takes place. Using the lens of the social revolution that the Constitution was to bring about, her chapter clarifies the implications of this multiplicity of visions, distinguishing “We the People” seeking to claim such unfulfilled constitutional promises today, on the one hand, and the functionaries obligated to translate constitutional promises into reality and to enforce them, on the other. Asking why it is that the ambitions of the latter find clearer expression in the constitutional text than those of the former, Ramnath also poses deeper questions about the representativeness of political institutions and about the strength and depth of Indian social reform agenda. Ramgotra’s chapter examines the notion of “republic” in Nehru’s political thought. She suggests that Nehru’s endorsement of this notion was influenced by Montesquieu’s normative doctrine of the separation and balance of powers. Further, it allowed Nehru to deal with the problem of princely states as well as the question of a common national identity that could override partial affiliations. She unpacks various elements of his republican thought: its sovereignty; non-arbitrariness in the exercise of power; promotion of unity against growing communalism and social inequality; a territorially integral republic which would incorporate the princely states for reasons of security and, finally, the republic as a nonaggressive and non-expansive member of the community of nations. Many of the themes explored in this volume remain particularly salient in our own time. Tejani’s intervention in the conceptual formations around “caste” and “minorities” is helpful in making sense of the ambiguities within which contemporary debates on these categories are shrouded. What is it that allows the Supreme Court to shoot down requests for the inclusion of Arya Samaj or Jainism as “religious minorities”, protected under Article 30 7

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of the Constitution? What is the basis for the UPA government’s inclusion of Jainas to the list of national minorities? If the grounds for such decisions remain ambiguous, and somewhat ad hoc, Tejani reminds us that this is not a new phenomenon. Similarly, recent events around the abuse of India’s sedition law (Section 124-A of the Penal Code), the judicial nullification of a draconian cyber legislation (Section 66-A of the Information Technology Act) and debates on hate speech laws have animated debates over freedom of speech in India. Gautam Bhatia does well to remind us that judicial reasoning on this subject mirrors that adopted by framers of the Constitution. First, both viewed India as a “nascent republic”, whose citizens were as yet incapable of broader provisions for freedom of speech. Secondly, both fail to address the power asymmetry between the individual and the state, insisting that there is no reason why the latter would abuse restrictions on speech. Finally, Neera Chandhoke’s analysis of social rights is particularly important in a decade that has seen a series of social legislations in response to civil society campaigns. These include the National Employment Guarantee Act of 2005, the Right to Free and Compulsory Elementary Education Act of 2009 and Food Security Act of 2012. Many of these legislations have emerged in response to judicial intervention. But Chandhoke is right to highlight that this is largely when the civil society mobilisation has been self-limiting. Campaigns that call for more radical social restructuring have barely been addressed by the courts. The antecedents of this contemporary phenomenon lie in the Constituent Assembly’s failure to integrate social rights into the Constitution despite a political background that strengthened the demand for such rights. Finally, this volume also contributes to the conversation on comparative constitutionalism. Sandipto Dasgupta’s chapter highlights B. N. Rau’s conversations with Roosevelt’s ally, Justice Felix Frankfurter, and how these influenced the framing of property rights in the Indian Constitution. He argues that Frankfurter’s warning about the “due process” clause of the American Constitution, and its use by the Supreme Court to strike down progressive laws in the Lochner era was particularly influential. Gautam Bhatia’s chapter tracks ways in which the US Supreme Court judgement in Gitlow v. New York was referenced by Ambedkar, and found parallels in the Indian Constituent Assembly’s conservatism in restrictions on freedom of speech. There remains further scope for a conversation of a more comparative nature, particularly with respect to the development of constitutions in South Asia.10 The chapters in this volume represent a methodologically diverse and contemporarily relevant scholarship that would be of interest to political scientists, philosophers, legal scholars and practitioners. We hope that the volume contributes to the scholarship on CADs in India and beyond, 8

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urging greater demystification and scrutiny of the “cornerstone of the nation” – as Austin famously called the Constitution – and the process through which it emerged.

Notes 1 See H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), pp. 93–94; D. Dyzenhaus, “Constitutionalism in an Old Key: Legality and Constituent Power”, Global Constitutionalism, 1:2, 229–260; C. Joel, Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power (London: Routledge, 2012). 2 J. Elster, “Arguing and Bargaining in Two Constituent Assemblies”, University of Pennsylvania Journal of Constitutional Law, 2 ([1991] 2000), 345–421. 3 R. Gargarella, Latin American Constitutionalism, 1810–2010: The Engine Room of the Constitution (Oxford: Oxford University Press, 2013). 4 R. Bajpai, Debating Difference (New Delhi: Oxford University Press, 2011). 5 G. Parolin, “Constitutions Against Revolutions: Political Participation in North Africa”, British Journal of Middle Eastern Studies, 42:1 (2015), 31–45. 6 S. Jha, “Rights Versus Representation – Defending Minority Interests in the Constituent Assembly”. In R. Bhargava (ed.), Politics and Ethics of the Indian Constitution (New Delhi: Oxford University Press, 2008). 7 J. Elster, “The Optimal Design of Constituent Assemblies”. In Securities Against Misrule: Juries, Assemblies, Elections (Cambridge; New York: Cambridge University Press, 2013), 191–235. 8 H. Landemore, “Inclusive Constitution-Making: The Icelandic Experiment”, Journal of Political Philosophy, 23 (2015), 166–191. 9 See G. Austin, The Indian Constitution: Cornerstone of a Nation (Oxford: Clarendon Press, 1966). 10 A recent attempt at initiating this conversation can be found in S. Khilnani, V. Raghavan and A. Thiruvengadam (eds.), Comparative Constitutionalism in South Asia (New Delhi: Oxford University Press, 2012).

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1 “WE THE PEOPLE?” Politics and the conundrum of framing a constitution on the eve of decolonisation Arvind Elangovan

The founders’ attempts to institutionalize popular sovereign will originated in the idea of sovereign power vesting in the hands of the people that was developed in extremist and Gandhian thoughts. Though the Gandhian form of direct exercise of political authority by the people in selfgoverning village polities was not accepted by the Constituent Assembly, the idea of popular sovereign power, and the institutionalization of public-minded deliberative politics by the people, and within government branches, manifested itself in various themes. – Sarbani Sen1

How should one read the Indian Constituent Assembly Debates? In an elegant, succinct and eloquent article published recently, Vikram Raghavan puts forward the argument for seriously reading the debates of the Indian Constituent Assembly (1946–50).2 The Constituent Assembly, after all, deliberated and debated for more than three years on the fundamental principles that were to guide the new republic. In outlining the reasons for reading the debates, Raghavan highlights the rich reserve of ideas that these debates contain. But, more importantly, he opines that the debates “shine a light on the past” providing the contemporary generation critical insights into the factors that led to the decisions made by the founding mothers and fathers of India’s constitution on issues of representation, secularism, fundamental rights and much more. Importantly though, Raghavan cautions us against reading the debates uncritically and instead asks us to be aware that in addition to the debates, one must pay attention to documents generated outside the Assembly. Raghavan suggests that one has to be aware of the historical nature – with all its complexities and contradictions – that 10

“ W e the P eople ? ”

went into the making of the Constituent Assembly and its debates.3 In this brief chapter, I follow Raghavan’s call to highlight a particular historical aspect of the making of the Constituent Assembly. I focus on the political debates that occurred at the highest levels of colonial administration and those of the Indian National Congress and the Muslim League leadership on the question of transfer of power and, in particular, the establishment of the Constituent Assembly in the aftermath of the Second World War. My argument is simple – on reviewing these political debates, which are well known in the literature of late colonial political history – it stands to reason that the Constituent Assembly was deeply imbricated in these political negotiations and did not quite emerge as a normative entity representing the will of the people. Instead, the scars of politics left a deep imprint on the remainder of its life until 1950, a perspective that is often overlooked when one thinks about the Constituent Assembly. This chapter attempts to recall this history in order to “re-member” the political conflicts that beset the founding of the Constituent Assembly.

The significance of the late colonial context The idea of constitutionalism is dependent on one of the necessary myths of modern politics, namely that of “We the People”. The preamble to the Indian Constitution too begins with this assertion. However, several scholars have conflated the normative yearning expressed in this immortal phrase with the actual history of the making of the Indian Constitution. It is often assumed that the Indian Constitution at its inception, in spite of its many faults, was ultimately a people’s document.4 In what follows, though, I argue that the late colonial political context was hardly amenable to the founding of a liberal republic based on the notion of “We the People”. Instead, the divisive nature of politics of this period fractured any notion of a unity of the people.5 But, let us take note of some important works that is organised around recognising the idea that the idea of “We the People” infuses the constitution. As Sarbani Sen goes on to argue in her book, the idea of popular sovereignty, which had a long trajectory in its manifestation as an anti-colonial struggle, predominantly influenced the text of the constitution. In other words, one could not separate the history of the popular struggle against colonialism from the constitution that proclaimed the sovereignty of those very same people. Sen is not alone in this belief. The magnum opus on the Indian Constitution written by Granville Austin attests to a similar idea. Austin, while pointing out the role of the enlightened oligarchs, nevertheless ultimately “credits the Indians”. In his final analysis, he remarked, “It was less the invaluable colonial experience that assured the working of the 11

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Constitution than that the ideas and spirit of English liberal democracy fell on fertile ground”. Ultimately, the cause of the “success” of the Indian Constitution rested on “the Indian receptivity to democratic ways”.6 The romance of the people having brought about this “social revolution” as manifested in the constitution continues in several significant studies. For instance, in a reflective essay on the Indian Constitution Uday Mehta observes that the Indian Constitution represents that unique moment in history when there was a conscious rejection of a separation of power and politics. Instead, Mehta suggests that Indians as a people embraced the notion of politics as not only mediating their everyday life but also framing a national identity: “Politics becomes even more central to stitching the nation and giving expression to the whole”.7 By equating constitutionalism with the appropriation of power, Mehta hints at considering the constitution not only as a crucial point of departure from which to examine postcolonial Indian politics but also as a document that signified the consensus of the people in the process of constitution making itself. Nowhere is the idea of a people being central to the political imagination more celebrated than in studies of the Constituent Assembly. Indeed, Austin’s first work on the constitution focused extensively and exclusively on the functioning of this assembly.8 Similarly, in his introduction to a volume dedicated to examining the politics and ethics of the Indian Constitution, Rajeev Bhargava writes, “In 1950, for the first time in their history, a diverse collection of individuals and groups became the people of a single book, one that reflects their commitment to protect their mutual rights and which articulates a collective identity”.9 Several studies on different aspects of the Indian Constitution rely on the debates of the Constituent Assembly to construct a seamless history of anticolonial struggle leading to the debates of the Constituent Assembly and the eventual framing of the constitution.10 What is striking in these works is the assumption that the Assembly was an entity in itself that was free to design the constitution it wished. In this sense, these influential works, while celebrating the Assembly as a manifestation of the will of the people, also assume a fusion of democracy with liberalism, thus generating the idea of a constitution as an act of contract between the people and the sovereign. However, Dipesh Chakrabarty in an article titled “In the name of Politics”, has explored this tension between liberalism and democracy to elucidate the nature of transition from the colonial to the postcolonial period. Chakrabarty argues that the “people” always constituted a central problem in the politics of both these periods.11 Drawing on the distinction that Hobbes made between instituted and acquired sovereignty, Chakrabarty points out how, though in a Hobbesian sense, a liberal order under both cases of sovereignty would have to guarantee rights to the individuals, such rights were absent in the Indian colonial 12

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context. During British colonial rule, even though there were “sentimental attachments” to liberalism, “in every case of disorder, one important and undeniable part of the response of the colonial authorities was to remind Indians who was in charge”.12 Therefore, in spite of the presence of liberal instruments of governance, what ensued in colonial India more often was what Chakrabarty, following Foucault, calls “Domination”. Thus the regime of colonial rule constantly vacillated between a liberal order designed to evoke an ideal of sovereignty and rights and the exception of rule by an iron fist whenever the situation, from the perspective of the British regime, would so demand.13 Chakrabarty concludes by questioning the nature of the liberal order that emerged at the end of the British regime. He points out that because of this inherent split in the nature of the colonial regime and its corresponding legacy in the colonial and the postcolonial period, the moment of a fusion of liberalism and democracy or, in a Hobbesian sense, of order and freedom, never came to pass. I suggest that this tension between liberalism and democracy became especially pertinent with the passage of the Government of India Act, 1935. As is well known, the period between 1935 and 1946 was marked by conflicts and negotiations both between Indian political parties as well as with the colonial government. The years of the Second World War were studded with constitutional discussions and deliberations about evolving a solution for accommodating various political interests in India, including the demand for Pakistan and protecting other minorities. In essence, these political conflicts centred on thinking about the constitution and indeed of the Constituent Assembly as well. But, we can appreciate the difficulty in thinking about the constitution when we remember the acute political differences between the Congress and the League and how it impacted the Constituent Assembly.14 Before we delve into the details of the conflict, a caveat is in order. In what follows, I present an overview of the tensions between these two major political parties from sources and literature that are already well known. The claim here is not that these tensions have not been sufficiently appreciated. Rather, I simply suggest that when we re-read these conflicts in the context of the establishment of the Constituent Assembly in 1946, we can greatly appreciate why the idea of a constituent assembly as a normative body may be an exercise in wishful thinking rather than rooted in historical developments.

The Congress and the League The promise of cessation of the Second World War fuelled extensive expectations in India about the possibilities of political and constitutional 13

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development as a step towards self-determination. However, the political atmosphere was far from being conducive to such a settlement. The Congress leadership was still in prison, with the exception of M. K. Gandhi. The leader of the Muslim League, M. A. Jinnah, had recently held inconclusive talks with Gandhi about a political settlement, which ultimately ended in failure. While the British Government in London under the leadership of W. Churchill still effectively held off all offers to arrive at a settlement in India, nevertheless, A. P. Wavell, the Viceroy, continued to think about enabling both an interim and a permanent solution to the Indian political problem. Around this time, after consultation with the India Office in London and the Cabinet, Wavell decided to call for a conference between the Congress and the League to offer a reconstitution of the Executive Council as a first step and holding of elections in the provincial assemblies as a second step towards setting up a constitution-making body. Historians have looked at this period, approximately between June 1945 and April 1946, when the election results for all constituencies were returned, as a period that marked the crucial step towards partition and eventual violent independence of India and Pakistan in 1947. Two different views exist in the historiography that focuses on British History. For historians, like Stanley Wolpert, this period hastened the end of the British Empire in India, whose goal at this time was to only abandon India as soon as it could.15 On the contrary, R. J. Moore in his Escape from Empire argues that the British Government tried very hard to reconcile the two disparate and opposing political views espoused by the Congress and the League.16 For Moore, eventually, the horrors of partition only happened due to the intransigence of the Indian political parties themselves and not because of the British attitudes. For nationalist historians, this period marked the crucial stage of transition from colonial to the postcolonial period. They typically see this period as the stage when the Congress and the League leadership really came together to create the two nations – India and Pakistan.17 But, what was the impact of this conflict on the making of the constitution? Let us explore.

The failed Simla Conference – 1945 In June 1945, Viceroy Wavell called for a conference consisting of representatives of most of the political parties in India to agree to the reconstitution of the Executive Council of the Viceroy as a first step towards settling the constitutional and political problems of India.18 Wavell was keen that allowing the best represented and respected leaders of the political parties to be a part of the Executive Council could be the only way to solve the present constitutional imbroglio. To this effect, he had already conducted 14

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several discussions with the Secretary of State, L. S. Amery, in London and with Prime Minister Churchill.19 On his return to India in June 1945, following these negotiations in London and to enable the conference, he released the working committee of the Congress who had been interned since 1942. Shortly thereafter he sent out invitation letters to all the political parties, except the Hindu Mahasabha, for a conference in Simla to discuss the constitutional changes. The success of the conference depended on the parties agreeing to both the composition and the function of the new Executive Council. Wavell proposed that the Executive Council should consist of equal numbers of Hindus and Muslims with representation given to other minorities like Sikhs and Scheduled Castes. The entire portfolio except that of War was to be vested with the selected Indian representatives in the Council. The War portfolio was to remain with the commander in chief, namely the Viceroy. The constitutional ties with Britain would still be the same as under the existing Government of India Act of 1935. This meant that for all constitutional purposes, the Viceroy would ultimately be responsible to the British Parliament and he would also be responsible for maintenance of British interest in India. Wavell, however, assured the Indian representatives at the Conference that this interim arrangement was not meant as a permanent solution but only as a transitional phase before complete self-government. Wavell also spelled out that there were several tasks for the interim government, should the conference succeed: the effective prosecution of War against Japan; framing of a body to draft the constitution and finally to arrive at an agreement on associating the princely states with the new constitution of India.20 In a large measure, Wavell’s proposals marked a definite step towards dominion status for India. It was for the first time after 1935 Act that the British Government were contemplating large-scale constitutional changes at the heart of the central government in Delhi. Some political observers saw distinct advantages in this scheme. Shiva Rao, a prominent journalist for The Hindu and Manchester Guardian, for instance pointed out that an Indian representative in the Cabinet would now hold the External Affairs portfolio. Further, he highlighted the corresponding changes in the status of Indians abroad, who would now be considered ambassadors. Rao argued that this was a huge boost to enriching India’s image in the world. This had to be taken as nothing short of complete self-government anyways.21 However, not everyone was as optimistic as Shiva Rao. Both the League and the Congress presidents were cautious in their approach to the Conference. Jinnah, in the weeks prior to the conference, had expressed his scepticism on the manner of the reconstitution of the Executive Council. At this point, Jinnah’s main concern was the nomination of the Muslim League 15

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members in the Executive Council. Whereas Wavell insisted on the constitution of the Executive Council on the principle of parity between the political parties, Jinnah saw this as a potential opportunity for the League’s rival, the Unionist Party in Punjab, also to be represented and thereby threatening to undermine Jinnah’s claim of the League to be the sole representative of Muslims in India. In a meeting with Wavell, on the day prior to the Conference, on 24 June 1945, Jinnah reiterated his stand. He said that under Wavell’s proposals, the Muslims would always be in a minority, as the other minorities in the Council would vote with the Hindus.22 Following this Jinnah also said that he was opposed to the Unionist Party having a representative in the Council for the same reason. Maulana Azad, as president of the Congress, in a meeting with Wavell expressed his concern about the composition of the Executive Council. While he did not object to the principle of parity between the religious communities, he certainly opposed the suggestion that only the Muslim League could nominate Muslim members. Further, Azad also communicated his anxiety about the persistent chain of command between the British Parliament, Secretary of State and the Viceroy. Azad saw this as undermining the goal of self-government to Indians. Gandhi, in fact, had said this most clearly that Wavell’s proposals “seemed rigorously to exclude the use of the word independence”.23 Not only a deepening divide between the Congress and the League thus characterised the period prior to the commencement of the Conference but it also exemplified a deep disagreement over the future constitution of the Executive Council. This disagreement explicitly related to the principles of the organisation of the government. Wavell insisted on an element of procedural fairness that would enable the constitution of the Executive Council. He thought that the actual distribution of affairs of the government could be decided later. On the other hand, the League and the Congress insisted on specifying the process and the substance of this reorganisation, thereby casting a severe doubt on the fairness of the procedure itself. Jinnah’s claim that the Council’s constitution would still be detrimental to the Muslims in spite of the proposed Council having an equal number of Muslims as Hindus was a case in point to the kind of thinking that pervaded the Conference. The constitutional disagreement on principles of organising the Council continued in the deliberations of the Conference itself. The Conference lasted about three weeks between June 25th and July 14th 1945. While Wavell presided over the formal meetings comprising all the delegates, there were several informal sessions that were held between all the representatives. During the formal sessions, the delegates spoke their mind on the nature of the problem confronting them. On the first day of the Conference, Azad clearly stated that the Congress was opposed in principle to the idea that it represented only Hindus, thereby 16

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hinting at the outset that he would not be prepared to accept any compromise on this issue.24 Jinnah, who at one point actually interjected and said that the Congress represented only Hindus, laid out his position that the principle of Pakistan drove the League’s participation in the Conference.25 Given that it would take time to materialise plans for partition, Jinnah said he was not averse to participating in an interim government. However, he underlined the point that the League alone represented more than 90 per cent of the Muslims and hence had to have the ultimate authority on specifying the Muslims who were to be a part of the central government.26 Given these two uncompromising positions, representatives of other parties like P. N. Banerjee, the leader of the Nationalist Party, Master Tara Singh, the leader of the Sikhs and other premiers and ex-premiers of British Indian provinces generally supported the claim that there had to be progress in the path of self-government, but the principle of communal parity was vicious.27 On the second day of the conference, the composition and function of the proposed Executive Council generated a heated debate. On the question of equal representation of Hindus and Muslims, P. N. Banerjee said that “as a nationalist he took strong exception to parity between Muslims and Caste Hindus, first because communalism was an antiquated idea and secondly, because Hindus could not be divided into two sections – Caste and non-Caste. The Executive Council should be selected on the basis of ability and capacity”.28 Azad and Jinnah stuck to their original positions with their fundamental disagreement on the question of parity. Differences were visible with the Viceroy’s position that he ought to have the overriding authority over his Executive Council in case of emergencies or for the sake of protecting minorities. The stalemate of the conference on the question of communal parity and organisation of the Executive Council continued to permeate the informal proceedings of the Conference as well. While there was hectic parleying between the political parties, very little progress was actually made in terms of agreement. Wavell had asked all the Conference delegates to submit a panel of names to be included in the new Viceroy’s Cabinet. The Congress deliberated for three days from July 3rd and submitted its panel of names. The League met on July 6th and the next day Jinnah put forward three suggestions to secure the place of the Muslims recommended by the League in the Viceroy’s Council. Jinnah demanded that the Muslim League should not be asked to submit a panel of names and that the names have to be discussed confidentially with him. Secondly, all the Muslims in the Cabinet should be from the Muslim League and finally there ought to be a better constitutional safeguard than the Viceroy’s veto to safeguard the Muslim minority interests.29 Jinnah’s demands on July 7th placed additional burden on Wavell, who had several discussions with the former to 17

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come to an agreement. However, Jinnah stood his ground saying that he could not accept anything less. Jinnah’s demand for extraconstitutional safeguard for the Muslims was the final straw. For, with this demand, Jinnah not only specified the persons to occupy the Cabinet but also iterated a constitutional clause that would have been extremely difficult to include. Jinnah’s demand effectively amounted to dissecting an already fractured Executive Council. The sheer impossibility of the demand directly led to the failure of the Conference. Wavell, in his parting speech, graciously accepted his responsibility in the failure of the Simla Conference.30 This failure of the Simla Conference heightened the political tension between the Congress and the League. The claim of representation that the two parties made was now constitutionally irreconcilable. Jinnah perhaps summed it up best when he said, “The Congress stood for a United India whereas the Muslim League stood for Pakistan and these two were entirely incompatible”.31 It was incompatible because the parties insisted on specifying the substantive aspects of a constitutional settlement instead of agreeing to the procedural aspect alone. Further, the moot issue was the question of representation. And, this could only be settled in one way – elections. The impending elections, however, only led to a hardening of stances of the political leadership with much bitterness and acrimony both between and within the parties. This political conflict between the two parties tore at the heart of any constitutional settlement, namely that of securing a federation of any kind. This also meant that an eventual constitutional settlement had to satisfy the irreconcilable claims of two different visions of a state – a separate state on the one hand and a unified state on the other. What was the position of the Constituent Assembly amid such a political context?

The Constituent Assembly The idea of a constituent assembly, a body to frame a constitution for united India, became a conduit for reconciling the claims of both the Congress and the Muslim League. Indeed, a constituent assembly was imagined nearly a decade earlier, but in the months after the world war, it assumed crucial significance. The problem, however, was that while the “ideal” of a constituent assembly involved a non-partisan approach to solving the political problem, nevertheless the “reality” of the situation never matched up to the ideal at all. In fact, by the time the Constituent Assembly could be established, all the political interests in India, including the British Government, were attempting to pre-empt the nature of the body, thereby hoping to influence its results. The autonomy and the normativity that an ideal 18

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of a constituent assembly demanded were no longer available in the bitter political conflict of the time. This section details the ways in which the idea of a constituent assembly was thought about from the mid-1930s onwards to the moment when the body was actually established on paper by the British Cabinet Mission. The Government of India Act of 1935 surged Indian nationalist imagination in more ways than one. Apart from the fact that the Act elicited severe condemnation by Indian political leadership, because its provisions were derived from the recommendations of an “all-White” Simon Commission; it surged the nationalists to call for the framing of the constitution by Indians themselves. This idea of a constituent assembly, whereby adult Indians would come together and frame a constitution had already been expressed by Gandhi in a nascent form as early as 1922.32 By 1934, the Congress formally recognised the need for a sovereign constituent assembly. The Congress Working Committee, on 17th and 18th June 1934, resolved that “The only satisfactory alternative to the White Paper is a constitution drawn up by a constituent assembly elected on the basis of adult suffrage or as near it as possible with the power, if necessary, to the important minorities to have their representatives elected exclusively by the electors belonging to such minorities”.33 A few weeks later, K. M. Munshi, a lawyer and a constitutionalist and an important leader of the Congress in Maharashtra and Gujarat, published an article in The Hindustan Times on 21st July 1934 detailing the history of the idea of constituent assembly.34 By invoking constitutional precedents of the United States and the former British colonies, Munshi underscored the undeniable importance of such a constituent assembly. He said, “The Constituent Assembly has come to play an important part in modern political life. The Congress stands for such an assembly, for it alone can be the symbol of India’s freedom and the source of her people’s strength. Through it, India hopes to attain the dignity of an enfranchised nation, fashion its will to self-determination, and find its own soul to express it through fundamental laws”.35 Gandhi had supported Munshi’s article and even made corrections to the draft before it went to the press.36 Congress’s demand for the constituent assembly increased in intensity after the promulgation of the 1935 Act. As will be recalled, initially, the Congress vigorously opposed the constitutional changes as the Act had called for a federation between British India and the princely states with executive authority still largely vested in the British Government and its representatives. In April 1936, at the meeting of the party, the Congress resolved, “no constitution imposed by outside authority and no constitution which curtails the sovereignty of the people of India . . . can be accepted”.37 Later in December, Nehru reiterated this demand in a speech at 19

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another Congress session. He said, “we have to stress our positive demand for a Constituent Assembly. . . . That is the very corner-stone of Congress policy today”.38 After a series of negotiations with the British Government, particularly on the issue of provincial autonomy, the Congress participated in the ensuing elections of 1936–37 in all the provinces. However, this did not dampen the demand for a constituent assembly. In fact, the Congress continued to pass resolutions in various meetings demanding the formation of a constituent assembly. In 1939, as a mark of protest against the British Government’s unilateral decision to enrol India in the war, and as a renewal of non-cooperation with the British Government, the Congress ministries in all the provinces tendered their resignation. In November 1939, the Congress Working Committee resolved, “A Constituent Assembly is the only democratic method of determining the constitution of a free country, and no one who believes in democracy and freedom can possibly take exception to it”.39 The demand for a constituent assembly continued to inform Congress’s deliberations till 1942, until all the leaders of the party were incarcerated. In 1945, after the release of Congress leaders by Wavell, the demand for a constituent assembly was only reinforced. Though the demand for a constituent assembly was an active part of nationalistic politics for the Congress, yet it was never simply a question of establishing a body to frame the constitution. From the beginning, the demand of the constituent assembly was deeply embroiled with the question of communal representation and later with that of Muslim League’s demand of Pakistan. In fact, the Congress leaders felt it essential to accompany the demands of a constituent assembly with a statement on solving India’s communal problem. The Congress saw the constituent assembly as a panacea for the pressing political problem with the Muslim League, the princely states and claims of other minorities. The intertwining of the demands of the constituent assembly along with the question of minorities can be seen in several speeches made by Congress leaders over the years since 1934. For instance, S. Satyamurti, a member of the Congress and a prominent constitutionalist from Madras spoke in the Central Legislative Assembly on 17 September 1937, on the resolution of rejecting the 1935 Act as not representing the will of the nation and “should be replaced by a constitution framed by a Constituent Assembly elected on the basis of adult franchise”.40 The argument was interesting, for even as he put forward the legitimacy of the idea of Indians writing their own constitution in a constituent assembly, he felt the need to address the claims of the Muslim League. He said, “This Resolution refers to adult franchise which must make an instructive appeal to the heart of every Hon’ble member of this House, and certainly to every Muslim member who by his religion believes in democracy”.41 Again, he went on 20

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to convince the Muslim League in the following words: “The Communal Award is there, not so much to help Muslims, let me repeat, but to help the perpetuation of British Imperialism in this country. Therefore, we want to fight British Imperialism with the help of our Muslim friends, with the help of all communities in this country”. Satyamurti also addressed the question of other minorities while speaking for the same resolution. He said, “And may I add that, as far as I can see, in a modern democratic government, all legitimate interests of minorities are bound to be protected by the very nature of the electorates? Of course, there are communalists today in my country . . . I have no respect or sympathy for them. They will go when India is free”.42 In Satyamurti’s view, the argument of constituent assembly could not be divorced from the argument of settling political differences with dissenting political interests. In November 1939, another prominent leader of the Congress from Madras, C. Rajagopalachari, urged that only by establishing a constituent assembly duly elected by the people of India can the problem of communalism be resolved. He proffered, “If an electorate duly representing all the peoples of India approve of the draft Constitution, no self-constituted representatives can thereafter have the right to make counter-proposals and keep the issue alive”.43 The fact that Satyamurti and Rajagopalachari had this view of the nature of the constituent assembly was interesting as within the party, they represented a minority view. Indeed, in the 1940s, these two leaders did not see eye to eye on many issues that the Working Committee decided, including the call for Quit India. Nevertheless, on the idea of the constituent assembly as a means to resolve communal conflicts, there was a consensus with the views of the “oligarchs” of the party.44 This is of course not to suggest that there was always coherence on the idea of the constituent assembly by the oligarchs. J. Nehru, for instance, deliberated on the meaning of the constituent assembly over a period of several years. In one of the earliest explanations in 1936, Nehru put forward the idea that the constituent assembly will have to represent the masses of India, thereby precluding a problem of communalism. He said, “If the masses are fully represented, inevitably economic issues affecting them will come to the forefront and superficial problems, like the communal one, will lose importance”.45 But, by 1940, Nehru realised that the demands of the Muslim League could no longer be ignored. He was ready to concede separate electorates for the purposes of establishing the constituent assembly.46 In December 1941, speaking at a press conference, Nehru agreed that the minorities may need separate representation and special protection in the constituent assembly. In response to a specific question on the Muslim League’s demand for protection of minorities, he said, “I can conceive of an organization or a minority saying that in certain matters which it 21

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considers important the will of the majority should not prevail against its own wishes”.47 Again, in an interview with the Associated Press of America on 8th March 1942, he reiterated the position that “when the Constituent Assembly meets later, it would be open to their (minority) representatives to make any proposals”.48 Thus, though, occasionally Nehru would invoke the romantic ideal of the constituent assembly representing the masses, nevertheless, on several occasions he came to admit that by the 1940s that a constitutional body could not be established without due representation from competing political identities such as espoused by the Muslim League. This realisation, which was not Nehru’s alone (as it was shared by his colleagues in the Congress and by Gandhi), actually created a problem of constitutional solution rather than provide an answer to the political deadlock. The Congress, which over a period of time, accepted the principle of representation of minorities in a constituent assembly, still would not guarantee parity to those minorities, a point which was at the heart of the Muslim League’s demands. Nehru, for instance, in the same press conference mentioned earlier to the Associated Press of America, claimed that in the constituent assembly, “There will either be agreement, or the matter may be referred to an international tribunal. Or, ultimately the problem will be solved by conflict. The risk has to be taken, for there is no other way”49 [Emphasis added]. This risk, that Nehru referred to, clearly signified Congress’s reluctance to engage the question of constitution making by locating the question of minorities central to the process. Rather, the Congress preferred to keep the question of constitution making by relegating the question of minorities to the margins.

The Muslim League’s opposition to the constituent assembly One of the significant features of the 1935 Act was the principle of separate electorates, which helped minorities to have their own representatives in the newly constituted legislatures, both provincial and central. For the Muslim League, this meant an opportunity to showcase the fundamental idea that the party truly represented the Muslims and thereby undermine Congress’s claim of representing the whole of India. Of course, it was well recognised by Congress and the League that electoral victory may not necessarily result in the League forming provincial ministries. This was because the total number of seats allocated to the Muslims was directly proportional to the Muslim population in these provinces. Given that they were a minority in most of the provinces, the chance of the Muslim League forming ministries was only in three of them, namely, North-West Frontier, Sind 22

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and Punjab. However, the League welcomed separate electorates, for it ensured its presence in the legislatures and initially at least there was an understanding with the Congress, that they would join hands to fight the Federation, which still retained power in the British hands. But, the results of the 1937 elections threw open an unexpected political landscape. The Congress won overwhelmingly in most of the provinces. It managed to secure a total of 716 out of a total of 1,585 seats in the provincial legislatures. It was able to form governments, by its own strength, in at least five provinces – Bihar, Central Provinces, Madras, Orissa and United Provinces. In the remaining, the Congress was the single-largest party in Bombay, Assam, Bengal and the North-West Frontier Province. The League, by contrast, showed very poor electoral returns. In Sind and North-West Frontier, the League did not win a single seat and in Punjab it won only one. However, the League won a majority of the Muslim seats in traditional Congress provinces like Bombay and Madras. In total, the League secured 105 out of the 482 seats allotted to Muslims in all the provinces. Interestingly, in spite of the decisive victory of the Congress, the League was not to be decimated. This was primarily because of the fact that the Congress still did not capture Muslim seats as it thought it would. In total, the Congress won only twenty-six seats out of the fifty-eight that it contested in all the provinces.50 This fact fundamentally undermined Congress’s claim that it represented the Indian Muslims. Further, for the League, though it performed poorly, its space for politics was not shrunk. On the contrary, political possibilities for the League and an eventual separation from the rest of India was enabled by three factors – first, the Congress, from a position of power foreclosed any possibility of a rapprochement with the League in order to fight the 1935 Act. As Jalal put it, “Once Congress succeeded in getting a constituent assembly along the lines it wanted, that assembly, even if it were to be elected on the existing franchise and even if Muslims continued to have separate representation, would contain a mere handful of League members. So there seemed little point in paying much heed to the League”.51 Given this understandable, but belligerent, attitude of the Congress, Jinnah had much cause to complain and further entrench his politics of separation. Secondly, if anything the electoral results proved that a greater battle needed to be won by the League and this was with other Muslim groups representing Muslim India. This meant that Jinnah had to focus on provincial politics, negotiate with the Unionists of Punjab and deal with the divisive politics of provincial League leadership in Bengal, Sind and the North-West Frontier Province.52 Finally, the 1937 elections ultimately determined political destiny only in the provinces and not in the centre. At the central level, the British Government’s control was firmer 23

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than before and for both Congress and the League, the ultimate battle was to take over power at the federal level. For Jinnah particularly, it was therefore important to not only focus on the provinces but also to be active at the central level, thereby procuring for himself a secure place in any political negotiations. In fact, as Jalal argues, it was because he decided to focus on the centre that he was able to move beyond the crushing electoral defeat of 1937. This possibility of separatist politics enabled Jinnah to oppose Congress’s demand for a constituent assembly. Speaking at the twenty-fifth session of the League at Lucknow, in October 1937, he registered his opposition to the calling of a constituent assembly. He argued that the Congress does not have the authority to call such a body or to proceed on the making of a constitution without solving the problem of the various communities or other political interests like the princely states. He said, “A Constituent Assembly can only be called by a sovereign authority and from the seat of power – a special body of men chosen as representative, with Government of the country as they may think proper, whose function then ceases”. Further, he added, “Taking the country as a whole, the Congress is still far from occupying the seat of authority; and it is a travesty of realities to think of the British Government calling a Constituent Assembly as for the ability of the Congress to do so, that is pure moonshine”.53 In the historic Lahore session of the League in March 1940, Jinnah echoed similar sentiments. Ridiculing Congress’s claim that separate electorates would be used to establish a constituent assembly, he asked, “In the event of there being a disagreement between the majority of the Constituent Assembly and the Musalmans, in the first instance, who will appoint the tribunal? And suppose an agreed tribunal is possible, and the award is made and the decision given, who will, may I know, be there to see that this award is implemented or carried out in accordance with the terms of that award?”54 In the aftermath of the Lahore Resolution, Jinnah’s scepticism about a constituent assembly persisted and he made this clearly known to the various efforts that were made in the early 1940s to resolve the constitutional deadlock in India. In April 1941, Jinnah again pointed out the folly of demanding a constituent assembly. He said, “The Muslims know that if the Congress demand [for a constituent assembly] is conceded, it will mean complete destruction of the Muslims. Therefore, naturally the Muslim League opposed it tooth and nail along with other minorities like the Scheduled Castes, Christians, etc.”.55 Jinnah’s opposition to the constituent assembly was thus intimately tied to casting the Congress’s claims as speaking only for the Hindus. Through the late 1930s and the early part of the decade of the 1940s, the Congress and the League, in spite of starting from a position of the critique 24

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of the 1935 Act, were sharply divided and polarised in terms of political rhetoric, ideology and political demands. The constituent assembly, which was a symbolic body for the Congress and a body to be avoided like the plague for the League, was thus, from the beginning, deeply embroiled between the political machinations of unity and separation. The idea of the constituent assembly was never really divorced from these competing visions of politics. In particular, the constituent assembly was accorded a subordinate position to the larger interest of political settlement between the two political parties. The British Government’s initiative to settle the constitutional problem between the two political parties thus reflected this feature and the idea of a constituent assembly continued to occupy the backseat in the ensuing political negotiations.

The Cripps Mission – 1942 The first systematic statement by the British Government on a constituent assembly, interestingly, did not come from the Viceroy or the Secretary of State. Sir Stafford Cripps, who, as a distinguished statesman was chosen by Churchill to solve the political deadlock between the claims of the Congress and the League, drafted a declaration to this effect. Cripps, who had earlier taken a personal interest in India, had visited the country in 1940. In 1942, as a personal emissary of Churchill and with the support of Amery, Cripps sought to meet with all political parties and evolve an acceptable solution in the light of Congress’s impending threat of civil disobedience. At this moment, Congress’s main demand related to reconstituting the Viceroy’s Executive Council with the defence portfolio resting with an Indian member. During this time, the demand for constituent assembly continued unabated as well. The League, fresh from its Lahore Resolution, remained steadfast on the demand for an independent Pakistan, in whatever constitutional measure that would be drawn up. It resolutely did not support the call for the constituent assembly. Cripps’s offer essentially consisted of laying out the future relations between India and Britain after the cessation of the war. In particular, Cripps declared that at the end of the war, a constitution-making body would be established that would be in charge of making the constitution for a united India. However, the British Government would accept such a constitution on the condition that a province that did not want to be a part of the union should be free to remain independent or enter into another union with like-minded provinces. Finally, as an interim measure, Cripps indicated that the Viceroy could potentially explore reconstituting the Executive Council but firmly rejected the possibility that an Indian member would control Indian Defence.56 25

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It was immediately clear to all the political parties that the offer read more like a promissory note in the abstract rather than a concrete proposal to solve the Indian political problem. Moreover, the heart of Cripps’s offer (the right of the provinces to stay away from the union) seemed like a concession to the idea of Pakistan, again rested on the principle of provincial autonomy, the backbone of the 1935 Act. Cripps, like many of his British contemporaries, charted out his offer, solely as an extension of the Act, rather than breaking new ground for completely restructuring the government in India. Cripps’s declaration for the establishment of the constituent assembly was made subordinate to the right of the provinces to secede, thereby giving primacy to the question of communal differences, rather than the stated task of framing a constitution for a united India. In its essence, then, Cripps’s offer did not require a restructuring of India’s constitution as much as the need was to settle Indian political differences by a variation of the existing Act of 1935. Cripps’s belief that the 1935 Act could be reasonably modified to accommodate new political situations actually cohered with the British Government’s policy of effectively forestalling constitutional issues from accruing any primacy in the legislative bodies of the central government. In fact, from the late 1930s and through the first half of the decade of the 1940, members of the legislative assembly and council in Delhi consistently raised questions of constitutional development and the idea of a constituent assembly. Of course, a number of these resolutions and motions were merely formal. But, often it led the government into several dilemmas about how best to answer the question in the legislative chamber. To a large extent, the government managed to find trite answers to serious questions about the constitution, by relying exclusively on the advice tendered by the Reforms Office. The Reforms Office was established in 1930 to essentially serve as a conduit for constitutional discussions between the British Government in London and in Delhi. It was felt for a long time that constitutional decisions that were taken in London may not always be appropriately or accurately transferred to India. Hence, a body was considered essential to negotiate between the two imperial centres and to coordinate constitutional development. By the late 1930s and through the 1940s, the Reforms Office became a crucial resource base to not only advise but also ask to come up with constitutional solutions in a rapidly changing political scenario. In fact, one of the civil servant architects of later constitutional development, and a close associate of Sardar Patel’s, V. P. Menon served as the Reforms Commissioner since 1943. Menon oversaw not only the transfer of power but also the integration of the princely states to the Indian Union.

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Significantly, in spite of the importance of this office, its nature, composition and function were largely hidden from the public eye. Members of the legislative assembly asked questions about the office that indicated the lack of knowledge about its work. In the light of such questions, the government actually ensured that as little information as possible was provided to the assembly. For instance, in 1941, members of the legislative assembly and the council raised questions about the status of the Reforms Commissioner, Mr H. V. Hodson. Raja Yuvaraj Dutta Singh in the council wanted to know if the Reforms Commissioner was secretly canvassing for constitutional changes. In this case, the Reforms Office specifically advised to say nothing beyond answering the question in the negative, namely, “No, Sir”. Further, the office also advised that in case of any supplementary question being asked, the answer ought to be, either “that does not arise out of this question” or “I have nothing to add to what I have already said”.57 Similar questions were raised by Govind Deshmukh questioning the nature and need of the Reforms Commissioner to tour the provinces in the legislative assembly.58 At least once, the leader of the Assembly, Sir Akbar Hydari, was upset with the Reforms Office for not providing enough material to answer supplementary questions in the house. Mr Manockji Nadirshaw Dalal questioned the nature of the work that the Reforms Commissioner was undertaking. Mr Dalal’s question also specifically referred to the nature of accountability of the Reforms Commissioner as well and wondered whether any Indian was associated with the Reforms Office at the highest levels. While Hydari answered the questions as prepared by the Reforms Office, namely, that the Reforms Commissioner was merely collecting objective data about the constitution, the supplementaries asked by P. N. Sapru were incisive. Sapru enquired whether the Reforms Commissioner was collecting data that were different from the material already available in the public, namely, the reports of the various joint select committees and the round table conferences. Further, Sapru enquired whether it was true that the Reforms Commissioner was canvassing support for initiating constitutional reforms that were in favour of British control. To all such questions, Hydari stoutly refused to commit beyond the stated “factual” answer. Needless to say, he chided the Reforms Office for not preparing him to answer the supplementary questions.59 Finally, the secrecy with which the Reforms Office functioned can be seen when, as late as 1946, Mr Manu Subedar asked the following questions about the Reforms Office, in the central legislative assembly: “(a) Will the Honorable the Leader of the House please state what work the office of the Reforms Commissioner has been doing? (b) When was the office of the Reforms Office created? (c) Who were the occupants? (d) What was the

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work done by these officers? (e) What were the reports or proposals prepared by them? (f) What instructions were given to them? (g) Will a copy of these reports be placed in the library of the Assembly for the information of the members of the Assembly?”60 Contrary to a common perception that the British Government was keen to conduct dialogue on constitutional changes, the evidence from the records of the Reforms Office suggests otherwise. The invisible nature of the Office only reiterated the idea that constitutional reform, if initiated, will have to address the larger question of politics not only between the two main contending parties but also the politics of the British Government in India. In this respect, the question of a future constitution and a constituent assembly as a corollary was made subordinate to the larger question of politics. By the end of the war, this question of politics directly turned on the question of reconstituting the Viceroy’s Executive Council. After the war, the issue was less the making of a new constitution and more about distributing the government’s power between the Congress and the League. This was part of Cripps’s unfinished agenda and it was also part of a long process of devolution from the 1935 Act.

Cripps’s offer – the Cabinet Mission proposals For Cripps, 1946 was a second opportunity to resolve the vexed political and constitutional question of India. However, Cripps had to contend with a dramatic transformation of the Indian political landscape, since the last time he was there. In fact, it had changed considerably in a year’s time since the end of the war. As noted by scholars, in 1945, Wavell had a considerable free hand to decide on how best to settle the constitutional problem. Members of the Congress Working Committee had been released from jail and it was hoped that their relative absence in the political field for about half a decade would slow down any further attempt by the Congress political machinery to rouse popular passions. Jinnah had failed to secure any more political capital than what he had already procured since the beginning of the war, in the absence of the Congress. Gandhi had exhausted his skills as a leader of mass movements and there was a relatively little threat from him. All this had changed. It was in these circumstances that Prime Minister Attlee deputed Sir Stafford Cripps to accompany the Secretary of State Lord Pethick-Lawrence and A. V. Alexander to “help” Wavell arrive at a constitutional solution with the warring political parties of India. The decision to hold elections in late 1945 to the legislative assemblies of the provinces and the centre had proven the worth of the two respective parties. The Congress and the League invested considerable energy and efforts to demonstrate that they truly represented those parts of the nation, which they claimed 28

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to, have a hold on. What resulted was a resounding victory to the Congress in the predominantly Hindu provinces and the League proved its presence in the Muslim provinces. This victory of the political parties could not be ignored. The rhetoric of dividing India and the question of how and to whom power should be transferred assumed monumental proportion. Amid such a highly charged political context, the idea of a constituent assembly, designed to determine the fundamental political principles of governing a country, began to take a backseat in the negotiations and preliminary discussions that took place between the members of the Cabinet Mission and the Viceroy. The Mission believed that there could be a reasonable way of resolving the political deadlock to the satisfaction of the Congress and the League from within the confines of the 1935 Act. In this belief, the Mission built on Cripps’s offer of 1942. As noted earlier, Cripps’s offer consisted of twin arrangements – first, to establish a constitution-making body for a united India with the provision for provinces to secede if they wished, and secondly, to hint at possible changes in the Viceroy’s Executive Council. The Mission arrived in India on 23 March 1946. Almost immediately, the Mission conducted several rounds of discussions with representatives of the Indian States and Indian political parties. The Mission also frequently exchanged notes and held closed-door discussions with Viceroy Wavell on the nature of negotiations that were under way. In these discussions, the idea of the constituent assembly figured only marginally.61 Importance was given to securing a political agreement between the Congress and the League that enabled them to agree to a common program. After the first set of discussions, the Mission’s initial statement was sent to Attlee. This statement consisted of two potential plans to solve the India and Pakistan problem. The first plan, called “Plan A”, envisioned a united India with the federal executive being responsible for Defence and Foreign Affairs only. The second plan, called “Plan B”, suggested two territorial entities of India and Pakistan with the latter consisting of Baluchistan, Sind, North-West Frontier Province, Western Punjab, Eastern Bengal minus Calcutta and Sylhet. This plan did not conceive any federal centre with exclusive powers.62 In laying out these plans, the Mission did not leave any substantial scope for a constituent assembly. The Mission hoped that the constituent assembly, if it had to be brought into existence, would have only been to ratify the terms of this arrangement rather than anything more substantial. The British Cabinet also agreed to the Mission’s proposal and gave permission to the latter to proceed on the basis of these two plans with a particular emphasis on plan B.63 Congress and the Muslim League could not agree to the principles of the plans. In April 1946, Congress had agreed to four basic ideas and 29

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refused to depart from them – (1) Complete Independence (2) United India (3) A federation with the units having residuary powers and (4) two lists of central subjects with one of them being compulsory and the other optional.64 Jinnah, on the other hand, told the delegation that he thought the Congress might agree on the first plan but not the second. Jinnah himself said he favoured the second plan (a thought that was shared by the Mission as well).65 The Congress and the League were completely unwilling to compromise on the question of future constitutional arrangements. It is interesting to note that in both their responses, the Congress and the League avoided the question of constituent assembly and instead skipped to the question of future constitutional arrangements. In the context of this failure to bring the two parties together for a discussion, Cripps drafted a memorandum of his own to enable a solution between the parties. This document is fascinating, for it not only avoided considering the question of constituent assembly seriously but also laid out in essence a plan that the Mission announced much later on 16 May 1946. In this outline, Cripps rejected the proposal of Pakistan as a separate sovereign entity, partly because of a large number of non-Muslim minorities who would be in the Muslim majority areas and also because the unviable nature of such a state. However, to secure the interests of the Muslim minorities, Cripps suggested a “three tier constitutional arrangement” beginning with the provinces that in turn would form groups among themselves, which would broadly fall under a final tier, the Indian Union that would encompass all these provincial groups. Similarly, the government was to be divided between three tiers – a Union Government responsible for External Defence, Foreign Affairs, Communications, Minority problems and “any other matters expressly committed to it by any of the other Governments”. The second tier of government would be the executive centre of both the regions to be called “Pakistan” and “Hindustan”. Finally, the governments of the provinces or state units would form the last tier in the structure of governance. Cripps also elaborated that the union government would consist of equal representatives from the central legislatures of both the federations of Hindustan and Pakistan. Further, Cripps noted that it would be important to guarantee certain fundamental rights to all the citizens irrespective of their provincial membership. An all-India court would have the necessary jurisdiction to decide on cases of violation of such fundamental rights. In addition to specifying the nature of the government, Cripps most interestingly outlined a marginal role for a constituent assembly. Cripps envisaged two drafting committees “of equal size of the Muslim League on the one hand and the Congress on the other”. These committees were then to meet together to draft the constitution of the Indian Union. In 30

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addition, as a safeguard to minorities, Cripps suggested a third drafting committee to agree on certain principles of protection, which could then be incorporated into the constitution. After such drafting has been completed, Cripps thought that a constituent assembly could then be convened for two reasons only. First, to enable the transfer of power to a single body rather than multiple bodies and secondly, to ratify the constitution already drafted prior to the convening of such an assembly. Cripps also added that such a constituent assembly could then divide itself into two groups – the Muslim and Non-Muslim and report to the assembly after they have agreed or amended the clauses of the constitution. As a stipulation, Cripps wrote that the “Assembly would have the power to pass them or to reject them but not to amend them”. Finally, Cripps offered the services of the British Government if there was particular rancour about clauses or irremediable disputes, to resolve such cases.66 Through this lengthy and cumbersome memorandum, Cripps actually laid down three basic principles: First, Pakistan as an independent sovereign entity could not come into existence; secondly (and this is where his memorandum was different from his 1942 offer) the principle of Pakistan need not only be confined to the provincial sphere. Instead, Pakistan could exist at the federal level as well; and finally, this political arrangement would be sufficient and precluded the real necessity of a constituent assembly. However, Wavell and Pethick-Lawrence were apprehensive of the fact that the British Government too would be responsible for the making of the constitution. Pethick-Lawrence, for instance, felt that the “Union proposal involved going a considerable distance towards designing the form of the future constitution”.67 Instead, both Pethick-Lawrence and Wavell preferred deliberating on a constitution-making machinery rather than prescribing the form of the constitution that a future India/Pakistan ought to have. The combined influence of Wavell and Pethick-Lawrence must have worked, when the agenda for the discussions in Simla was drawn up. In the agenda, the issue of constituent assembly featured last, preceded by the subjects of grouping of provinces and the constitution of the union of India.68 At the second Simla Conference, the Congress, the League and Stafford Cripps differed on the idea of the Constituent Assembly. The Congress reiterated its position that the constituent assembly would decide the Union constitution and also frame the outlines of provincial constitutions.69 Further, Nehru suggested that if the provinces wanted to form groups, then that ought to happen after the meeting at the constituent assembly, and not before. Elaborating on the principle of provincial autonomy, Nehru said, “While the Congress contemplated autonomy for the Provinces that meant internal autonomy, it was quite another thing for autonomy to be used to 31

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create the new piece of constitutional machinery going beyond the boundaries of the Province”.70 Nehru further laid out Congress’s policy as far as provinces or states not wanting to be a part of the constituent assembly. He said, “If any province declined to come into the Constitution-making Body, the Constitution-making Body should proceed without it”.71 Jinnah, on the other hand, rejected this suggestion by Congress for a single constitution-making body, which would not only frame the Union Constitution but also draft an outline for provincial constitutions. Jinnah urged that provinces and especially groups of provinces needed to meet separately to frame their own constitutions and would consult with other constitutionmaking bodies only for the purpose of framing the Union Constitution. Otherwise, Jinnah suggested that the provinces should be free to frame their own constitutions.72 Both Wavell and Cripps tried to mediate this difference between the Congress and the League. Wavell suggested that in order to avoid a direct conflict between the parties, it would be useful to arrive at certain decisions prior to the meeting of the constituent assembly. Cripps, on the other hand, was more forthright on what he thought about the constituent assembly. Based on his earlier memorandum of April 18th, Cripps suggested that this Conference was no less important than the constituent assembly itself. He said, “The fate of India was being decided at the Conference. If there were no agreement someone would have to lay down the course along which events should proceed. To stand still was impossible. This Conference had as much power to avoid or create difficulties as the Constitution-making Body would have when it met”.73 Cripps strongly believed that it was possible to arrive at decisions before the establishment of the constituent assembly. The Mission and Wavell were thus sceptical about the constituent assembly being a decisive body. Instead, in their own ways they tried their best to obviate the necessity of a constituent assembly or, if necessary, to reduce it to a ratifying body alone and not a decision-making one. Negotiations over the next few days did not produce a desired result. This prompted the Mission itself to arrive at a statement, loosely based on Cripps’s offer of 1942 and the memorandum that he drew up on April 18th. On 16 May 1946, the Mission made an announcement, whose gist consisted of two main elements of constitutional settlement. The first, for the short term, an interim government, which was to be wholly Indian, was to be set up to carry on the administration of the country, under the supervision of the Viceroy and the second, in the long run, a constituent assembly was to be established. However, largely in deference to Cripps’s view, the assembly (whose members were to be elected by the provincial legislatures) was circumscribed to accept the Mission’s recommendations of the structure of the future government of India. In elaborating 32

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this measure, the Mission laid out that there could not be any partition of the country, but the Union government was to be responsible only for Foreign Affairs, Defence and Communications. The provinces were to be autonomous to the extent that they could frame their own constitutions in conjunction with other provinces, if they so wished. Importantly, as a concession to the principle of Pakistan, the Mission provided for provisions for reconsideration of the terms of the constitution after ten years. As a safeguard to religious minorities, at the federal level, issues regarding the two main religious communities could be decided only by a majority of members of both communities present and voting as well as a majority of the members of the legislature. Thus the Mission’s statement was a curious combination of different interests – in accordance with the wishes of the Congress, it preserved a modicum of unity; as per the demands of the Muslim League, it expanded the principle of provincial autonomy and as per Cripps’s memorandum, the constituent assembly was fundamentally guided by the “basic structure” of the government. However, this consensual approach did not satisfy the two principal parties. In the days that followed, Congress and the League would interpret the Mission’s statement in their own ways before accepting and rejecting parts of the proposal. Most importantly, the Congress eventually entered the constituent assembly and began framing a constitution, while the League chose to stay out until partition and independence in 1947.

Conclusion In this chapter, I have suggested that by revisiting the political conflicts between the two main parties – the Congress and the League – and by reviewing the debates about the constituent assembly that occurred in the negotiations with the British colonial leadership, we remind ourselves about the context in which the constituent assembly was established. Like different aspects of the constitution, which has a long history and one ably documented by Granville Austin, the assembly too had a conflict-prone history. For the longest time, both in its imagination and in its materialisation, the constituent assembly was subject to the vicissitudes of political demands of the two main political parties and the British leadership. As we know, from the date of its first sitting on 9 December 1946 until 15 August 1947, the assembly largely functioned as per the directions laid out in the Cabinet Mission. The normative value of the constituent assembly thus needs to be qualified when seen from this historical perspective. Of course, one might argue that the nature of the constituent assembly underwent a dramatic transformation after independence and partition in 1947. For, after all, didn’t the Congress assume complete leadership and 33

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draft a constitution that was amenable even to the minorities? However, recall that the members of the constituent assembly continued their task of drafting the constitution knowing well that they no longer had to contend with the powerful claim of Muslim minorities. Indeed, a significant impact of the absence of Jinnah and others in the constituent assembly can be seen in the dramatic transformation of minority rights to representation, which was initially granted and later withdrawn, a point admirably argued by Shefali Jha and Rochana Bajpai.74 In such a context, the claim that the constituent assembly rose above the political compulsions of the day seems a bit stretched. One might also wonder about the benefits of remembering this political history. As Austin argued, the members of the constituent assembly, though mostly belonging to the Congress, nevertheless incorporated some critics of the party as well, such as Dr B. R. Ambedkar. While this is true I think an important purpose is served by remembering this political history. This history helps us appreciate the democratising process of the new republic especially in the process of constitution making. In other words, the political context of establishing the constituent assembly provides a way for us to question the sanctity of the law. It is useful to remember that the constitution and the constituent assembly were ultimately a product of certain social and political forces and as such should be scrutinised for their merits and demerits. Even law, ultimately, has to defend itself under reasonable questioning. Finally, let me return to the question of how to read the Constituent Assembly Debates, posed at the beginning of this chapter. In agreeing with Raghavan, I suggest that the debates must be read by remembering the historical context in which the constituent assembly was established. If we overlook this history, then, we commit the error of valorising the speeches and statements made in the assembly by erasing the political history – of conflict, negotiation and exclusion – that led to the establishment of the assembly and enabling these speeches in the first place.

Notes 1 Sarbani Sen, The Constitution of India: Popular Sovereignty and Democratic Transformations (Delhi: Oxford University Press, 2007), p. 4. 2 Vikram Raghavan, “Why Do Our Constitutional Debates Matter?”, available at www.livemint.com/Opinion/mLactWgKWt6iKosuEyBNMI/Whydo-our-constitutional-debates-matter.html (last date of access: 5 October 2016). 3 Ibid. 4 Of course, this is not to deny that the “people” appropriated the constitution in the postcolonial republic. See the many writings of Rohit De

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including his PhD dissertation, “The Republic of Writs: Litigious Citizens, Constitutional Law, and Everyday Life in India (1947–1964)” (Princeton University, 2013). 5 In a different chapter, I trace the beginning of this dissonance between the language of “we the people” and constitutional developments in India to the implementation of Montagu Chelmsford reforms of 1919. See “Constitutionalism, Political Exclusion, and Implications for Indian Constitutional History: The Case of Montagu Chelmsford Reforms (1919)”, South Asian History and Culture, 7:3 (2016), 271–288. 6 Granville Austin, The Indian Constitution (Oxford: Oxford University Press, 2008), p. 330. 7 Uday Mehta, “Indian Constitutionalism: The Articulation of a Political Vision”, in Dipesh Chakrabarty, Rochona Majumdar and Andrew Sartori (eds.), From the Colonial to the Postcolonial: India and Pakistan in Transition (New Delhi: Oxford University Press, 2007), p. 28. 8 Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi: Oxford University Press, 1966). 9 Rajeev Bhargava (ed.), Politics and Ethics of the Indian Constitution (New Delhi: Oxford University Press, 2008), p. 1. In this regard, also see Madhav Khosla, The Indian Constitution: Oxford Short Introductions (New Delhi: Oxford University Press, 2012). 10 However, exceptions exist. Sandipto Dasgupta has critically interrogated this problem of continuity from the colonial to the postcolonial. See his essay “ ‘A Language Which Is Foreign to Us’: Continuities and Anxieties in the Making of the Indian Constitution”, Comparative Studies of South Asia, Africa and the Middle East, 34:2 (2014), 228–242. 11 Dipesh Chakrabarty, “ ‘In the Name of Politics’: Democracy and the Power of Multitude in India”, in Dipesh Chakrabarty, Rochona Majumdar and Andrew Sartori (eds.), From the Colonial to the Postcolonial: India and Pakistan in Transition (New Delhi: Oxford University Press, 2007). 12 Ibid., p. 39. 13 Anthony Low characterized this swaying as “imprint of ambiguity”. See Low, Imprint of Ambiguity: Britain and India, 1929–1942 (Cambridge: Cambridge University Press, 1999). 14 For a recent insightful account of the problems involved in analysing colonial continuity in the postcolonial period, see Arudra Burra, “What Is Colonial About Colonial Laws?”, American University International Law Review, 31:2 (2016), 137–169. 15 Stanley Wolpert, Shameful Flight (Oxford: Oxford University Press, 2006). 16 R. J. Moore, Escape From Empire (Oxford: Clarendon Press, 2003). 17 For a good example, see Bipin Chandra, Nationalism and Colonialism in Modern India (Delhi: Orient Longman, 1979). 18 All political parties representing interests of different communities were invited, except for the Hindu Mahasabha. 19 For details of these negotiations with the unhelpful British War Cabinet, see Wolpert, Shameful Flight, pp. 75–80. 20 See V. P. Menon, Transfer of Power in India (Princeton, NJ: Princeton University Press, 1957). 21 Shiva Rao, Framing of the Indian Constitution, vol. V. (Delhi: IIPA, 1966– 68), p. 62.

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22 Menon, Transfer of Power, p. 190. 23 Ibid., p. 185. 24 Ibid., p. 194. 25 Ibid., p. 196. 26 Ibid., pp. 197–198. 27 Ibid., pp. 196–197. 28 Ibid., p. 200. 29 Ibid., p. 205. 30 Ibid., pp. 207–209. 31 Wolpert, Shameful Flight, p. 86. 32 Austin, The Indian Constitution, p. 1. 33 Shibani Kinkar Chaube, Constituent Assembly of India (New Delhi: People’s Publishing House, 1973), p. 27. 34 K. M. Munshi, Indian Constitutional Documents, Munshi Papers, vol. II (Bombay: Bharatiya Vidya Bhavan, 1967), p. 5. 35 Ibid. 36 Ibid. 37 Shiva Rao, The Framing of India’s Constitution, op. cit., vol. I, p. 80. 38 Ibid., p. 81. 39 The Encyclopedia of the Indian National Congress, vol. XII (New Delhi: S. Chand, 1981), p. 207. 40 Shiva Rao, Framing of India’s Constitution, vol. I, p. 94. 41 Ibid., p. 95. 42 Ibid., pp. 96–97. 43 Ibid., p. 105. 44 Austin mentions the oligarchs of the constituent assembly to refer to the four leaders of the Congress – Nehru, Patel, Azad and Prasad. 45 Selected Works of Jawaharlal Nehru, vol. 7 (New Delhi: Orient Longman, 1975), p. 127. 46 Ibid., vol. 10, p. 428 in a letter to Satyamurti, 23 January 1940. 47 Ibid., vol. 7, p. 6. 48 Ibid., p. 154. 49 Selected Works of Jawaharlal Nehru, vol. 7, p. 154. 50 Bimal Prasad, “Congress and Muslim League, 1935–37”, in Richard Sisson and Stanley Wolpert (eds.), Congress and Indian Nationalism (Berkeley, CA: University of California Press, 1988), pp. 310–311. 51 Ayesha Jalal, Sole Spokesman (Cambridge: Cambridge University Press, 1994), p. 38. 52 How this scenario radically changed by the elections of 1946 is most authoritatively told by Jalal, Sole Spokesman. 53 Syed Sharifuddin Pirzada (ed.), Foundations of Pakistan, vol. II (Karachi: National Public House, 1924–47), pp. 244–245. 54 Ibid., p. 303. 55 Ibid., p. 338. 56 The complete text of the offer is published in Nicholas Mansergh (ed.), Transfer of Power, vol. I (H.M.S.O., 1970), p. 565. 57 Reforms Office, File No. 23/5/41 – R, National Archives of India. 58 Reforms Office, File No. 21/6/41 – R, National Archives of India. 59 Reforms Office, File No. 23/3/41 – R, National Archives of India. 60 Reforms Office, File No. 21/7/46 – R, National Archives of India.

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61 For instance, on 28 March 1946, the Mission and the Viceroy discussed ways in which the princely states could be represented in the constitutionmaking body. They shared the common apprehension that the Congress may object to the nominees of the princely states given the party’s longstanding objection to hereditary rulers. 62 Nicholas Mansergh, Transfer of Power, vol. VII, p. 221. 63 Ibid., pp. 229–230. Also see p. 260. 64 Ibid., p. 285. 65 Ibid. 66 Ibid., pp. 303–310. 67 Ibid., p. 323. 68 Ibid., p. 413. It is also interesting to note that at this point, the agenda did not feature any discussion for the setting up of an interim government either at the centre. 69 Discussion in Simla on 6 May 1946, ibid., p. 440. 70 Ibid., p. 441. 71 Ibid. 72 Ibid., pp. 441–442. 73 Ibid., p. 442. 74 Shefali Jha, “Representation and Its Epiphanies: A Reading of the Constituent Assembly Debates”, Economic and Political Weekly (25 September 2004), 4357–4360; Rochana Bajpai, Debating Difference: Group Rights and Liberal Democracy in India (New Delhi: Oxford University Press, 2012), Chapters 1–3.

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2 CONFLICT, NOT CONSENSUS Towards a political economy of the making of the Indian Constitution Sandipto Dasgupta

Unlike the Americans, the Indians do not have an exulted mythology of the “founding fathers”. But there does exist a watered-down version of it – focusing not so much on beatification of individuals, but on the celebration of a moment of collective wisdom. At the core of this celebration lies an important fact about the composition of the Constituent Assembly. The Congress – which had an effective monopoly over the choice of members to the assembly – decided to go outside of the ranks of its loyal office bearers to include eminent experts and statesmen. This included the lawyer A. K. Ayyar, bureaucrat N. G. Ayyangar, the former Congressman K. M. Munshi and, most famously, B. R. Ambedkar, the chairman of the Drafting Committee – who had been one of the most prominent antagonists of Congress and its leader M.K. Gandhi for over a decade. As Granville Austin, in his peerless history of the making of the Constitution notes, the leadership of the Congress ensured that “persons of exceptional ability found places in the Constituent Assembly”,1 including the several “nonCongress ‘experts’ ” we just mentioned.2 Austin also quotes K. Santhanam telling him that “there was hardly any shade of public opinion not represented in the Assembly”.3 Beyond the specificities of the contribution made by these individuals – most historians, and even Ambedkar himself, have noted that the ultimate control regarding the making of the Constitution remained firmly in the hands of the Congress party leadership4 – what this factoid reveals is a larger point about the way in which the postcolonial political leadership approached the making of the Constitution. It provides a sense of a ruling dispensation that enjoyed a stable and secure basis for its own legitimacy, and one which sought to rise above narrow particularity of interests to include eminent statesmen and experts even if their political 38

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leanings did not always align with that of the Congress. The process of making of the Constitution, in such a scenario, can be analysed essentially as a consensual one. Not in the sense of an absolute unanimity of opinions, but rather as a process inculcated from conflicts between competing interests. It was a congress of wise (mostly) men, committed to certain abiding principles of constitutionalism, rule of law and democracy, engaging in a (at times contentious process of) deliberation regarding how to best realise them on the admittedly uncertain terrain of postcolonial India. One could consequently theorise such a process – and by extension the Constitution – through an analysis of the force of arguments advanced and values affirmed. One could furthermore do so without concerning oneself unduly about the messy social reality that existed outside the Constituent Assembly – from which the wisdom of the framers elevated the process. The goal of this chapter is to argue against such a standpoint for analysing the making of the Constitution and for another one: that takes conflict rather than consensus as its starting point. This is not a factual claim, seeking to uncover some hitherto hidden instances of dissensus and factionalism among the assembly members. Rather, it is a methodological one. Its starts from the claim that despite Congress’s unrivalled hold over political power, the moment of postcolonial transition was not marked by a stability and consensus, but rather their lack. While a negotiated transfer of power maintained the integrity of the state apparatus, the transitional moment was marked by lack of an abiding consensus regarding the nature of the political and social structure to be constructed, and both the political and social terrain was fissured along lines of latent conflict. The task of the postcolonial leadership, as they often acknowledged explicitly, could not be understood outside of this dynamic and fissured terrain on which they sought to establish a new political regime that was both viable and stable. Once we, as scholars of the constitution-making process, shift our vantage point from the deliberative sphere of high ideals in the assembly to the contentious social world within which they sought to achieve their task, a different picture of process – and once again, by extension, the Constitution itself – emerges. It’s such a shift in our perspective that this chapter argues for. Such a perspective would situate the constitution-making process as a critical part of the postcolonial transition and regime formation, rather than an analytically autonomous activity accessible only to the specialised vocation of constitutional theory. In this context it is useful to quote a portion of the concluding speech by the Constituent Assembly president Rajendra Prasad. “The first question which arises and which has been mooted is as to the category to which this Constitution belongs”, Prasad said. “It makes no difference so long as the Constitution serves our purpose. We are not bound to have a constitution which [. . .] falls in line with known categories 39

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of constitutions in the world. We have to take certain facts of history in our own country and the Constitution has not to an inconsiderable extent been influenced by such realities as facts of history”.5 Prasad’s statement makes two related points: first, that the Indian Constitution escapes any easy description accorded to it through the lens of established constitutional doctrines, arrived from an a priori deduction of what a constitution is expected to look like. Second, that a proper analysis of the Indian Constitution must take into account “certain facts of history”, that has shaped the Constitution “not to an inconsiderable extent”. These “facts of history’ ” I argue, were the specificity of the moment of postcolonial transition, rife with power relations, divisions and conflicts. Crafting the Constitution was part of the process of regime formation that was both constrained by those power relations and seeking to manage potential conflicts that could arise out of them. The point here is not to advocate for a view of the Constitution making as a cynical exercise in reasons of state or naked bargaining between well-defined interest groups. Neither do I mean to suggest that those who gathered in Constituent Assembly did not hold certain ideals or principles as valuable. However, as they themselves reiterated multiple times in the Assembly, there was a real danger in assuming that they had inherited a condition where those values could be realised unreflexively. Therefore, general theories of “constitutionalism”, “democracy” or “liberalism” cannot provide us with the full story as to the specificity of the Indian Constitution–making experience. An analysis of the Indian Constitution on its own terms must then start from the complexity of the socio-political constellation that makes any claims about an unproblematic genealogy of either liberal or democratic constitutional values among the Indian Constitution makers difficult to maintain. Instead of a priori deductions regarding such values, the constitutional imagination has to be understood, and its embodiment situated, within a historical terrain marked by complexity, conflict and constraints. Not because the deliberations in the Constituent Assembly were simple reflections of existing social interests, but rather because the terrain marked by the complex interplay of those interests constituted the field of force that shaped those deliberations, and generated the potential conflicts that provided the orienting point for those arguments. This is not merely an expression of scholarly preference, but is supported by how the Assembly members themselves frequently referred to the nature of their work – speaking of rebellious masses, potential insurrections and a social revolution that was necessary (and not merely desirable) to be brought about. A full account of the work that they did therefore has to look beyond the walls of the Assembly to the messy terrain of social reality to which the inhabitants of that Assembly often glanced at nervously. 40

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A complete or even substantial analysis of the Indian Constitution from such a methodological vantage point is beyond the scope of this chapter. What I would try to do instead is provide a brief justification for why I chose conflict rather than consensus as the central term of this reorientation that I argue for and provide brief outlines of some of the major fissures and fault lines of such conflict. Alongside, there will be suggestions of potential lines of enquiries that one might follow, and kinds of insights these might generate. At the risk of oversimplification, let me foreground the overarching claim about the Constitution that I see as emerging from those brief sketches. The focus on active and potential conflicts allows us to identify the lack of any abiding or hegemonic consensus arising out of the nationalist struggle regarding the nature of postcolonial political and social institutions. In such a condition, the postcolonial ruling elites saw their task as one of a complex management of potential social unrest through a gradual and controlled process of social transformation. The Constitution was not merely an institutionalisation of certain abiding principles’ constitutional governance. Rather, it was also designed as a framework of state power that could achieve that task of precise and controlled transformation. An administrative point of view, focused on the skilful manoeuvring of state machinery to precisely manage social conflicts, therefore assumed prominence within the Indian constitutional vision. Beginning from the nature and threat of conflict allows us to apprehend the subject position of the administrator who was one of the most prominent, if not the preeminent, protagonists of the story of crafting the Indian Constitution.

Consensus or conflict What we have termed the “consensual viewpoint” was by no means restricted to studies of the Indian Constitution. For a long time, it was the prevalent view of the postcolonial transition itself among scholars of Indian politics and history. The historians of the so-called “nationalist” school of historiography stressed the creation of a popular national imaginary generated by the anti-colonial struggle and represented by the Congress as the party of independence. On the surface the Congress did indeed seem to enjoy such an expansive popular legitimacy; and with the Muslim League’s exit from the scene after the partition, an unchallenged domination of the postcolonial political scene. Scholars of Indian politics argued that under these conditions Congress acted less like a traditional party representing the interest of specific groups and more like an umbrella organisation mediating between different social interests. This line of thought found its most well-known exposition in the work of Rajni Kothari, who argued that India had a “one party dominance”, as opposed to a “one party rule”.6 Congress, 41

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he argued, was a “party of consensus” that functioned both through an “in-built corrective through factionalism within the [. . .] party” as well as a “latent threat from outside”.7 The latter came from the marginal parties and organised interest groups outside of Congress. While these groups almost never had the realistic opportunity to win power, they gave voice to demands from outside of Congress, which at times overlapped with those of particular factions, resulting in realignment of the power within the party. In other words, a moderating and democratic dynamic existed through the “mobility and life of the internal power structure of the Congress”.8 More generally, such an analysis suggested an implicit tendency for negotiated centrism among the ruling dispensation – both the government and the party – during the transitional moment in India.9 This view began to be challenged, not coincidentally, as various forms of crisis – from political to economic to institutional – overwhelmed the Indian landscape in the 1970s. Rather than viewing these developments as essentially contingent events, scholars sought to interrogate the deeper structural contradictions of the political regime.10 At the heart of this reconsideration was the questioning of Congress’s claim to speak for and with the “people” at the moment of postcolonial transition. Despite its unquestioned pre-eminence as a political organisation, Congress was unable to establish an expansive hegemony through the anti-colonial movement in the sense of generating an organic “common sense” regarding the nature of the new political and social order based on the active consent and participation of the masses. There remained a meaningful lack of a genuine social consensus and the nature of the elite–mass alliance remained fragile and contingent, within the postcolonial political constellation. Highlighting this foundational deficiency recasts the project of postcolonial nation building as something that didn’t grow organically out of a new popular consensus but had to be a deliberate project, and one that had to be understood as continual process rather than a triumphant new beginning. The analytical focus of this narrative of Indian political development is not consensus, but conflicts and their strategic resolution. By delineating the lines of conflicts – both actual and potential – we get a sense of the variegated social terrain and the contingent alliances which made the transformational constitutional project necessary and shape its particular instantiation. It helps us identify the coalitional – rather than consensual – logic that lay at the heart of the postcolonial transition. Taking the fissures and fractures in the social terrain as our focus helps us understand the constraints within which the political actors worked, and the choices they made within that. To approach the making of the Constitution as informed by those contestations and constraints is to understand it in its historically specific 42

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terms – as a part of the larger process of the postcolonial transition. However, one needs to add an important methodological clarification here. As scholars of the constitution-making process we cannot simply assume that the Constitution was a mere translation of social relations, conflicts and balance of forces during the transitional process. Rather, it was a particular institution form that sought to mediate those relations, conflicts and forces. That institutional form, as E. P. Thompson noted, “has its own logic, its own independent history and forms”. Consequently, “one has to be attendant to those forms if one has to say something meaningful as to how law acts as a mediating institution”.11 For our purpose, it means that we must be mindful of the fact that the Assembly sought to mediate a process of managed transformation through a constitutional form – with its own wellworn precepts and conventions. One has to be careful as to not to reify those precepts into abstract ideals, but at the same time one cannot ignore them altogether. Instead, one has to be attentive to the history of the development of those precepts, how the constitution makers themselves understood them and the formal structure it imposed on their agenda. Therefore, an analysis of the Indian Constitution on its own terms – both historical and formal – would require one to specify how the necessities and antagonisms related to the project of postcolonial transition were ultimately negotiated within the formal possibilities of writing a constitution.

The crisis of consensus and the rebellious masses To provide a brief outline of these necessities and antagonisms, it is useful to start a few years before 1947 with the well-known disagreements between M. K. Gandhi and the emerging leadership of the Congress – most notably his chosen successor, Jawaharlal Nehru. Gandhi had over a couple of decades transformed Congress from a party of petitioning urban elites to a genuinely mass organisation. His central contribution to the nationalist movement was to engender a discourse that succeeded in recruiting the peasant masses of India to the cause of the nationalist movement under the umbrella of Congress. In the process, Gandhi emerged as an all-important “hinge” in a contingent alliance between the masses and the elites that gave the anti-colonial movement its formidable character.12 At the same time, he was scrupulous in avoiding “end oriented” mobilisations based on class or caste that could sow internal divisions and conflict within the national movement. However, the contingent condition for the alliance, and by extension Gandhi’s centrality as the “hinge”, was the struggle against the colonial regime. He was successful, as none before him had been, to forge a political language that could form an alliance between the elite leadership of the Congress and the peasant masses against colonial rule. However, he 43

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had at the same time failed to create an abiding “common sense” around his vision of social and political order once that rule was abolished. As Shahid Amin pointed out in his seminal work on the violent events in Chauri Chaura that led to Gandhi calling off his first non-cooperation campaign, he had failed to fully discipline what was “popularly regarded to be just, fair and possible”.13 The peasants of Gorakhpur, in that instance, constituted their own notions of social injustice and political action often under the banner of Gandhian slogans. This was not a singular moment of failure.14 As independence drew nearer, and the focus turned more towards the postcolonial future rather than the colonial present, the slippages grew starker and more frequent. As Sudipta Kaviraj noted, at the last instance, Gandhi failed to create a single hegemonic “common sense out of the two conceptual languages which emerged in Indian culture through ­colonialism” – that of the elites and the masses.15 While his success as an anti-colonial political leader remained beyond question, he ultimately failed to form through that movement a “structural base” for the “foundation of an independent Indian state”.16 A more general way of stating the problematic here is that despite the success of the anti-colonial movement, the Indian elite were not successful in fully overcoming their distance from the peasant masses – remaining unable to create a new language of politics that could represent the view of the masses regarding what is “just, fair, and possible”. In other words, there was an inability on the part of the Indian elite in general, and Congress in particular, to create a common meaningful framework for a new social and political order through the anti-colonial struggle. The subsequent disagreement between Gandhi and Nehru could be viewed in the context of this failure. Beyond the obvious ideological divide separating them on the desirability of a modern state form – which ­Gandhi opposed and which the Constituent Assembly subsequently affirmed – one could see Nehru’s views as a reflection on the persistence of conflict in Indian society.17 Given Gandhi and Congress’s failure to create an abiding consensus, the tried and tested machineries of the modern state were required to manage a conflictual social reality. The way it could do that was by identifying the probable causes of social unrest, addressing the demands arising from various quarters, and devising plans to balance competing interests. Nehru himself identified these challenges in primarily socio-economic terms. In a letter to Gandhi, Nehru stressed that the problem facing the Congress was not an abstract one regarding principles of “violence versus non-violence” but rather that of creating a condition of peace and stability.18 He identified “sufficiency of food, clothing, housing, education, sanitation etc.”19 as crucial to that project and hence the primary objectives to be met by the postcolonial leaders, and they had “to attain them speedily”.20 Critical to the project of creating a viable and 44

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stable postcolonial regime was a state machinery that was able to deliver a program of socio-economic development, and do so without engendering large-scale social disruptions. In other words, a modern state was not only ideologically desirable; it was also necessary to achieve a project of gradual social transformation – without which social conflicts simmering below the surface could threaten the existence of the nascent regime. The Constitution, consequently, had to be a framework that could facilitate that project. The need to deviate from the Gandhi’s vision for India – at least on this fundamental question – was not just Nehru’s position. It was shared by the wider circle of leadership among the Congress. Despite Gandhi’s towering position in the Indian political scene, and despite the multiple guilt-ridden lamentations in the Assembly of the betrayal of the Mahatma’s vision, one finds little evidence of a serious push for considering decentralised federations of village republics in the Constituent Assembly. This could be understood as a common acknowledgement of a problem – namely that of the potential of discontent and discord. It did not signify any automatic unanimity – even among the Congress leadership – regarding how best to resolve it. Rather, it gave rise to the most meaningful political fissure among the postcolonial elites. This division predated the Constituent Assembly, and had been developing within the Congress since the early part of the 1930s. It manifested itself in the familiar language of the Left versus the Right within the Congress. During the nationalist movement, those on the ‘left’ wing of the party would push for a greater mobilisation of the mass movement to confront the colonial regime. Those on the Right sought to avoid further mass mobilisation (and consequent radicalisation of the movement) and argued for a more accommodating and negotiating (rather than confrontational) posture vis-à-vis the colonial regime. The two most influential leaders of these two wings respectively were Nehru and Vallabhbhai Patel; and their struggle for power within the Congress could be viewed as oriented around these larger questions of strategy for the postcolonial ruling elite. As the movement ended, and the moment of transition came about, the orienting logic of this alignment also shifted. While Nehru and the Left advocated for a more thoroughgoing modernisation directed by the developmental state, Patel and the Right remained sceptical of the effects of such a thorough transition and the effects it might have on existing relations of power and interests in society. What is important to remember regarding this contestation is that unlike the image that is conjured up by the phrase “Left versus Right” – familiar to us from the experiences of modern Western politics – neither side represented a deeply held ideological position or a clearly demarcated social force. Rather, the debate was regarding the 45

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direction, extent and mechanisms of managing the transitional moment and its attended social conflicts. The nature and potential of the popular discontent were not a mere hypothesis in the minds of the Congress leaders. The meeting of the Constituent Assembly closely followed two massive – and very different – expressions of mass action outside the disciplinary controls of the Congress leadership. The first was the Quit India Movement, where the imprisonment of the top leadership of Congress resulted in a rapid radicalisation – leading to sabotage of infrastructure, guerrilla wars and even short-lived “free zones” – revealing clear signs of the tensions under the surface of popular politics. The second was the partition, overlapping with the initial years of the Assembly, that unleashed a gruesome spectre of violence. Perhaps even more worrisome were the massive labour strikes and militant peasant movements – including the largest armed peasant uprising in Indian history at Telangana – that were taking place at different parts of the country while the Assembly was drafting the Constitution. These unrests weighed on the minds of the members of the Assembly who spoke about the “dangers of insurrection and bloodshed”.21 They spoke about “revolution” and “rebellion”, which they did often, not as events of the anti-colonial pasts but of an uncertain postcolonial future. “These down-trodden classes are tired of being governed”. Ambedkar warned the Assembly. “They are impatient to govern themselves”.22 “This urge for self-realisation in the down-trodden classes”, he added, “must not be allowed to devolve into a class struggle or class war [. . .] That would indeed be a day of disaster”.23 That Ambedkar – and his assessment was far from a unique one – viewed the threat of future unrest in terms of “class war” is explainable in terms of both the global and domestic contexts. The still potent example of the Russian Revolution and the more – both geographically and temporally – proximate example of China painted a concrete and meaningful picture of potential dangers, both of which were mentioned several times in the Assembly. The fact that the Communist Party of India remained outside the Assembly, and emerged as one of its most trenchant and organised critics further drove home those concerns. The widely shared anxiety about an uncertain and potentially rebellious future among the members of the Assembly – as clearly evidenced from the transcript of the debates – needs to be stressed to counter the notion of a body of wise lawgivers functioning in relative seclusion from social tensions. It is further necessary to stress that this was not simply a theoretical and abstract notion of “unrest” that all constitution makers must address, but one based on concrete socio-political reality of India. However, there is a reason why I use the term “anxiety” – signifying something that is uncertain – rather than the more tangible term “pressure”. It’s because the masses 46

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were not fully organised at a sufficiently large scale to present themselves or their interests as a coherent social group. Neither did they have a political party that could credibly claim to represent a sufficiently large number of them and present a list of institutional proposals. It was not as if the masses were passive or politically inert. I have already mentioned the various strikes, local rebellions and protests of various forms that increasingly marked the later years of colonial rule. However, these activities remained relatively localised and did not add up to a national organisation that could credibly claim to represent the peasants and workers, mobilise them successfully and, consequently, demand a bargaining seat with the Congress. In such a scenario, the transitional project – and hence by extension the Constitution itself – was not the result of a sort of a negotiated compromise between owners and workers, the way the advent of the post-war welfare state in the Western world has often been described. There were no coherent “party of the workers/ peasants” that could demand to sit on the other side for such a negotiation. Instead, what we get is an apprehension of instability and insurrections, and worries about poverty and immiseration. Instead of a compromise between the masses and elites, we get an anxiety about social unrest and the consequent acknowledgement of the need for intervention and managed transformation of the social condition. Crafting a precise mechanism for transformation becomes a central theme running through the various substantive debates in the Assembly. It created a prominence of the administrative dispensation among the constituent vision.

The divisions among the elites The crisis of hegemony and the anxiety regarding mass unrest provides us with one half of our story. To fully analyse how the constitution makers sought to resolve the myriad questions such a condition generated, and how they sought to incorporate the project of managed transition within the Constitution, we also need to look at the fissures and contentions between the dominant social forces themselves. There were no homogenous group of “elites” with a unanimous vision as to how best to devise a project for managed transformation. Rather, the moment of transition provides us with an uneasy coalition of three dominant classes, all of whom had a stake in creating a viable and stable regime sans social unrest, but had different stakes regarding how it was to be achieved. The condition for such a coalition was crucial factor in India’s socioeconomic history: the incomplete development of capitalism in India and the consequent weakness of the industrial capitalist class. The industrial capitalist class, which have by that time have evolved as the singular triumphant class in the Western world, was unable to assume a similar 47

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role in India. To comprehend this distinction, it is useful to first set up a theoretical referent point as to what the relationship between a dominant capitalist class and political institutions might look like in advanced capitalist countries in the contemporaneous period. In his seminal work, Adam Przeworski set out to interrogate that relationship in terms of the paradox of European social democracies, where working class parties had won elections democratically but were unable to alter the fundamentals of the capitalist system.24 This paradox, he suggested, could be explained by a refined version of the “structural dependence of the state on capital” thesis, which argued that the private ownership of productive resources limits the possible outcomes of a democratic process.25 Private ownership means investment decisions are private. Since the party in power in a democracy depended on continued investments both for electoral gains and state stability, they were not willing to extend their redistributive agenda beyond a point that would – in Gramsci’s phrase – “touch the essential”. Przeworski argues that under such a condition of dependence, the present material interest of the capitalists (profit) appears as the future universal interest of the whole society (growth). The trade-off that at present looks to be between two particular interests – wage increase for workers versus profit for capital – is presented as a trade-off between a present particular interest (consumption) versus a future universal one (growth through investment). The relationship can be expressed through this formulation: “Appropriation of profit by capitalists is a necessary condition for the future realization of interests of any group”.26 In other words, even when political power was held by parties ideologically opposed to the interests of the capitalist class, they had to acquiesce to the political economic interests of that class in a substantial way. In India, on the other hand, colonial rule had meant that the developmental trajectory of indigenous industrial capital was heavily determined by the needs and policies of the metropolitan economy.27 For most of colonial history, agriculture and trade provided the surest return on investment, and the focus was on exporting raw materials and importing manufactured goods from England. Development of indigenous industrial capital under this condition remained weak, sporadic and informal. Therefore, capital in India was not in a position where its interests could appear, simply by virtue of its place in the economy, as the universal interest of the nation. The concept of a “dominant class coalition” was developed in India in response to such a condition where due to its historic weakness the capitalist class had to share power with other classes. This concept was given its most influential form by the economist Pranab Bardhan in the context of economic development,28 and subsequently by Sudipta Kaviraj, in the context of political development.29 The long-term ruling coalition consisted of 48

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three distinct social groups – the industrial capitalist, the landowning elites and the bureaucratic managerial elites.30 Independent dominance of any one of these classes was not a concrete historical possibility in mid-twentieth-century India. Precisely due to the lack of an “economic hegemony” – in Przeworski’s term – the political facet of a coalition of classes came to the fore. Hence the coalition was not an incidental fact or an accident; it was the very condition of elite dominance, which would otherwise be destabilised. This fact provided a centripetal constraint on the coalition but not a frictionless unity of purpose. The latter was not possible since meaningful differences existed in the interests and expressions of these classes. Each potential political move – even if for a supposedly common end – could have differential impact on the respective positions of the classes. As independence drew near, and the general goal of winning freedom from colonial rule gave way to more particular struggle for determining the structure of new political institutions and allocation of resources, these tensions were heightened. As a result, intense negotiation and bargaining among them was a central feature of the coalition. Several such engagements were taking place at the moment of postcolonial transition with regard to different pieces of economic and social policy. The Constitution, the most significant aspect of that transition, was not immune from that dynamic. The Constitution was a unique object for such wrangling. It did not allocate substantive outcomes in the way a piece of legislation or policy document did. Rather, it set out a mechanism for future bargaining over substantive resources. In other words, a negotiation over a constitution was a negotiation about a framework of negotiations, which was simultaneously more complex and had higher stakes attached to it. What complicated the picture further, in the context of India, are three related aspects of this negotiation (though the sequence is for the sake of analytical clarity, not reflective of actual historical development). First was what could be termed the centripetal constraints of the coalition. The inability of any group to claim individual superiority made them unable to leave the coalition or afford to lose any other group. In terms of constitution making this implied an inability to propose a separate system of rule, either constitutional or otherwise, than the one being hammered out inside the Assembly. In other words, neither group was able or willing to lead either a revolution or a coup. Second, India was to be a democracy, and it was a democratic constitution one was negotiating about. This meant every negotiating move was double natured – that is, it had to be conceived and expressed in terms of both the position of a dominant class within the coalition and their respective relationship to the masses outside the coalition. The third fact, following from the second, was that the nature of the relationship between the elite coalition and the masses at large had necessitated a constitutional 49

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vision geared towards managed social transformation. This pushed the Constitution towards flexibility and need for accommodations, and made the process of finding guarantees about preservation of substantive interests an even trickier task. The combination of all these factors constituted a “field of force” within which the lengthy deliberations on drafting the Constitution took place. The need to maintain the stability of the political rule of the elites made them accept the need for a transformational constitutional vision. At the same time, disagreements about the particular substantive questions within that broad vision led to intense negotiations about the specific way in which it was to be expressed in the form of a written constitutional document. In other words, while the lack of a political hegemony in India gave the broad constitutional vision its unique form, the nature of the inter-coalitional negotiations gave the constitutional document its specific textual form. The intensity of the negotiations increased when there were major differences in position on a substantive point. The point is not to break down each substantive question in the Assembly debates into three contending positions based upon the respective interests each class. Rather, the task would be to carefully reconstitute the “field of force”, which both constrained and animated the deliberations conducted and choices made by the Assembly members. The weakness of the industrial capitalist class meant that they were crucially dependent on the state for their own future growth and stability. The two most significant areas where this dependence was evident was with regard to investment and managing labour conflicts. This led them to offer qualified acquiescence to a plan for state-directed modernisation and the wider project for a managed transition. Their firm insistence, however, was that this transition was in the nature of “development” rather than “socialisation”, a point to which we will return in the next part. The landowning elites were internally differentiated among two major groups – the landlords or zamindars, the semi-feudal owners of estates who were often minimally involved in the productive process and concerned primarily with extracting rent; and the “big” peasants who owned and cultivated their own land, often with hired labour. The zamindars represented an economic form that not only had failed to evolve with the times but was also seen as an impediment to increasing agricultural production. More significantly, they were deeply unpopular politically – due to both their exploitative role in the agrarian economy and a history of active collaboration with the colonial regime. It was clear during the constitution-making process that the zamindars could no longer exist qua zamindars – i.e. as a legal status with the express backing of the state. The more significant group therefore were the big peasants. This distinction between these two 50

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groups is crucial to analyse the issue of land reform – the substantive economic policy most frequently discussed in the Assembly – vis-à-vis the constitutional design. The big peasants, often large tenants of the zamindars, were the ones who controlled the bulk of the labour, capital, and operational aspects of the cultivation on the ground. They were able – which postcolonial democratisation would further consolidate – to translate their social power into political influence, in time becoming a new “Pillar of the State”.31 Indeed, much of the local Congress organisation in the rural areas was already dominated by this group by the time of the constitution making. It was precisely their political and social dominance in the countryside that made the landowning elite an enemy of sweeping modernisation or land reform. The dominance of peasant elite to the social strata below them – the small holders, the share croppers and the landless agricultural labour – was sustained by a variety of extra-economic forms of coercion and subjugation. Therefore, they had little reason to be supportive of a plan of full-fledged capitalist transformation that could destabilise their complex network of control and coercion, or any robust plans for land redistribution. At the same time, unlike the managerial elites or the industrial capitalists, the landowning elite lacked the language of universality through which they could posit their interests as “national interests” – as the former have done with regard to discourses of “development”, “planning” or “stability”. Lacking an “alternate coherent vision to offer”,32 their efforts in terms of the Constitution were directed towards fragmenting and slowing down the centralising force of the transformational pressure. They could not repudiate a state-led developmental vision, but they wanted to make sure that it was sufficiently controlled and amenable to local variations and manipulations. In terms of the constitution making, the most significant of the three classes were the managerial bureaucratic elite. Unlike the other two classes, they did not constitute a class by virtue of their place in the production chain, or due to their ownership of certain material resources. Rather, their subject position derived from their role in managing the state and the political institutions, and their mastery of certain forms of knowledge and procedures that is crucial to that end. The substantial autonomy already enjoyed by the colonial state, the strengthening of that autonomy during the complex and delicate process of postcolonial democratic transition, allied with the aforementioned weakness of the capitalist class, meant that the nascent Indian state enjoyed relatively more autonomy from capital than its Western peers in the mid-twentieth century. As a result, the class most connected to that state in various ways – the managerial bureaucratic class – developed a distinct sphere of influence of their own. Precisely because the state – with its well-honed machinery developed under colonial 51

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rule – was to be the primary (and at times exclusive) protagonist of managing the fraught destiny of postcolonial India meant that the skills possessed by this class in operating that machine, perfected under colonial tutelage, was of precious value. These were the skills that were called forth to ensure that the broad principles of constitutional government were modified and adjusted to the specificity of the Indian “experience”. This explains the length and procedural minutiae of the constitutional document – one that made it resemble more a “Motor Vehicles Taxation Act” rather than a Constitution, in the words of one Assembly member. It also explains why that lengthy manual of the state machinery borrowed so heavily from the colonial Government of India Act – under which these skills were honed and the experiences garnered. But most significantly, their prominence reflected the centrality of what I have been calling the administrative dispensation in designing the constitution.

The preferences and priorities of the developmental state To complete our picture of the social conflicts and tensions that marked the constitution-making process, we have to briefly summarise the nature of the managed transformation that emerged through these negotiations and provided the necessary background for the constitutional design that sought to accommodate it. We can identify three major themes of the regarding the “problem” of the socio-economic conditions of postcolonial India that had to be at best solved and at worst managed. The first such theme was the massive inequality in wealth and property. This manifested itself most starkly – and in most politically problematic form – in distribution of land in the countryside. The second major theme was that of lack of productivity. The agrarian sector in India, facing variegated factors of social hierarchies, colonial distortions, lack of investments and technological and infrastructural inputs, was stuck in a period of stagnation since the late eighteenth century. The average rate of growth in agriculture for the first half of the twentieth century was a meagre 0.4 per cent.33 Similarly, in the absence of a capital goods industry, skilled labour force, indigenous technological capacity and significant domestic savings, the potential for industrial growth was also limited. Even in the 1950s, the entire industrial sector contributed to less than 15 per cent of the GDP, of which the share of private capital was even less.34 The problem of underdevelopment manifested itself through three kinds of challenges – poverty, scarcity of resources (most significantly, food) and an inadequate capital base for industrial development. The third theme was that of extra economic forms of domination of labour. The large portion of the agrarian workforce was bound by what has been 52

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called a semi-feudal relation of production, most commonly through the zamindari system (though that was not its only form). It was semi-feudal in the sense that production was conducted with the capitalist market in view, and under the aegis of “modern” legal institution, but its functioning fundamentally depended on various “traditional” forms of extra-economic coercion and symbols of deference. Alongside this various other forms of extra economic coercions existed – like debt bondage,35 menial labour practices along the lines of caste and the practice of begaar, whereby functionaries of the state or local landlords coercively extracted uncompensated labour for infrastructural and public works projects. The myriad and informal forms of domination extended even to the industrial labour force in the cities as well as those of plantations and mines. In the latter instances work was often coerced through the explicit force of the law, in particular the draconian doctrine of criminal breach of contract.36 The deliberate ways in which the postcolonial elites conceptualised and sought to deal with these related sets of problematic can be found in the discourse of “development planning”. The most significant point one takes away from a study of the numerous economic policy discussions of this time is a certain sequence posited in dealing with the problems of inequality and productivity. The latter was made the priority, with issues of increased production being the primary goal in the short term, and the issues of distribution and equity to be dealt with subsequently in the medium or long term. Counterfactually, one can imagine a path that prioritised reduction of inequality and hence sought to achieve it – in the relative short term – by expropriating and redistributing accumulated wealth. But that path was rejected as being “undesirable” and “impractical”.37 Instead, The First Plan, of 1951, defined its objective thus: “to promote a rapid rise in the standard of living of the people by efficient exploitation of the resources of the country, increasing production, and offering opportunities to all for employment in the service of the community”.38 Distributional goals were not absent from this vision, but they were to be met primarily through growth in the economy – through increased employment and wages, say – rather than being the principal focus of the plan. That the postcolonial regime builders sought an interventionist state should not be confused with a plan for a gradual progress to a social-democratic, let alone socialist, regime in its usual sense. The distinction between the developmental state and the welfare state was not inconsiderable. The legal-institutional infrastructure reflected these preferences. Hence the Constitution did weaken certain classical liberal rights and safeguards – most significant of which was property – to create more space for state intervention. At the same time, it did not – in the manner of its mid-twentieth-century contemporaries in Europe – provide constitutional guarantees regarding certain social goods 53

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to its citizens. In either case, the constitution makers did not want to commit to certain principles of desired social orders by embedding them in the legal-institutional architecture. Rather, they focused on creating a mechanism whereby precise interventions could be made if and when the social process demanded them. An interesting study of this mode of constitutional design could be conducted regarding how the Constituent Assembly engaged with the third set of issues we have mentioned earlier – that of coerced or unfree labour. The widely prevalent fact of the multifarious forms of coercion exercised over labour, and the fact that it reflected a deeply hierarchical and exploitative social condition, were discussed in the Assembly several times. They often formed the backdrop of the realisation that the journey from subjecthood to citizenship cannot be viewed only through the lens of the transfer of power from the British to Congress. As Ambedkar pointed out in the Assembly, one could not ignore the “essentially undemocratic soil” on which one wished to erect a democratic Constitution.39 The issues of “forced labour”, caste or reservation all brought to fore questions regarding forms of domination that were not sanctioned by law. What is important to disentangle here is that when faced with these issues, which were embedded within the larger question of social hierarchies and exploitation, the Constituent Assembly opted to legally sanction the most egregious forms of oppressive practices, rather than seek to address the larger systemic or structural factors that might lead to social unfreedom in general. So regarding land reform, they sought to eliminate the practice of zamindari rather than affirm any relationship between property rights and labouring in the land in general.40 In the case of caste, the heinous practice of untouchability was prohibited, while the demands of certain Dalit leaders for an abolition of the caste system itself was ignored.41 Similarly, while ‘forced labour’ was prohibited, its definition was narrowly circumscribed with reference to the existing practice of begaar to ensure that it could not be used to litigate the distinction between free and unfree labour in general.

Conclusion Taking conflict, rather than consensus, as our starting point for the study of the making of the Indian Constitution allows us to focus on the administrative dimension of the constitutional design – one concerned with deliberate, precise management of social conflicts and transitions. As scholars of that process, it calls on us to provide a picture of a legal-institutional architecture of managed transition, rather than institutionalisation of certain abiding principles or consensually settled vision of a social and political future. 54

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For scholars of postcolonial transition, this calls us to be attendant to the complex legal and procedural modalities of the constitutional design as one of the more significant aspects of the formation of the nascent regime.

Notes 1 Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi: Oxford University Press, 1972), p. 11. 2 Ibid., p. 13. 3 Ibid. 4 B. R. Ambedkar, CAD, 25 November 1949. Also see Ambedkar’s speech at the Proceedings of the Council of States, September 1953. Quoted in, Aditya Nigam, “A Text Without an Author: Locating the Constituent Assembly as an Event”, in Rajeev Bhargava (ed.), Politics and Ethics of the Indian Constitution (New Delhi: Oxford University Press, 2008), p. 119. 5 Rajendra Prasad, CAD, 26 November 1949. 6 Rajni Kothari, “The Congress ‘System’ in India”, Asian Survey, 4:12 (1964), 1161–1173. Also see Rajni Kothari, Politics in India (Boston, MA: Little and Brown, 1970). 7 Ibid., p. 1162, 1165. Emphasis added. 8 Ibid., p. 1165. 9 Apart from Rajni Kothari, this narrative, coming out of what can be called an “institutional” view of politics, found expressions in the works of W. H. Morris-Jones, who characterised the political system in India as “dominance coexisting with competition but without trace of alteration”. See Wyndraeth H. Morris-Jones, “Dominance and Dissent: Their Inter-Relations in the Indian Party System”, in Wyndraeth H. Morris-Jones (ed.), Politics Mainly Indian (Madras: Orient Longman, 1978); Wyndraeth H. Morris Jones, The Government and Politics of India (London: Hutchinson University Library, 1964); Wyndraeth H. Morris Jones, “The Indian Congress Party: A Dilemma of Dominance”, Modern Asian Studies, 1:2 (1967), 109–132. For a variant of this argument, see Myron Weiner, Party Building in a New Nation: The Indian National Congress (Chicago: Chicago University Press, 1967). 10 See Sudipta Kaviraj, “A Critique of the Passive Revolution”, Economic and Political Weekly, 23:45–47 (1988), 2429–2443. 11 E. P. Thompson, Whigs and Hunters (New York: Pantheon, 1975), p. 259. 12 Sudipta Kaviraj, The Imaginary Institution of India (New Delhi: Permanent Black, 2010), p. 115. 13 Shahid Amin, “Gandhi as Mahatma: Gorakhpur District, Eastern U.P., 1921–22”, in Ranajit Guha (ed.), Subaltern Studies III (New Delhi: Oxford University Press, 1984), p. 55. 14 The instances of creative adoption of Gandhian tropes in the cause of militant peasant struggles were numerous. See Tanika Sarkar, “Jitu Santal’s Movement in Malda, 1924–1932: A Study in Tribal Protest”, in Ranajit Guha (ed.), Subaltern Studies IV (New Delhi: Oxford University Press, 1985), pp. 136–164; David Arnold, “Rebellious Hillmen: The Gudem Rampa Risings 1839–1924”, in Ranajit Guha (ed.), Subaltern Studies I (New Delhi: Oxford University Press, 1982), pp. 88–142.

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15 Sudipta Kaviraj, “On the Structure of Nationalism Discourse”, in Imaginary Institution of India: Politics and Ideas (New Delhi: Permanent Black, 2010), p. 115. 16 Ibid. 17 For a fuller version of this argument, see Sandipto Dasgupta, “Gandhi’s Failure”, in Perspectives on Politics (forthcoming). 18 Jawaharlal Nehru, A Bunch of Old Letters (Delhi: Oxford University Press, 1988), p. 508. 19 Ibid. 20 Ibid. 21 Brajeshwar Prasad, CAD, 10 September 1949. Emphasis added. 22 B. R. Ambedkar, CAD, 25 November 1949. 23 Ibid. 24 Adam Przeworski, Capitalism and Social Democracy (Cambridge: Cambridge University Press, 1985). 25 The most well-known version of this thesis was suggested by Nicos Poulantzas and Charles Lindblom. See Nicos Poulantzas, Political Power and Social Classes (London: New Left Books, 1973), and Charles Lindblom, Politics and Markets (New York: Basic Books, 1977). It was then refined by Adam Przeworski and Michael Wallerstein. See Adam Przeworski and Michael Wallerstein, “Structural Dependence of the State on Capital”, The American Political Science Review, 82:1 (1988), 11–29. 26 Adam Przeworski, Capitalism and Social Democracy (Cambridge: Cambridge University Press, 1985), p. 139. 27 See Amiya Kumar Bagchi, Private Investment in India (Cambridge: Cambridge University Press, 1972), and (for a different version) Tirthankar Roy, Rethinking Economic Change in India: Labour and Livelihood (London: Routledge, 2005). 28 Pranab Bardhan, The Political Economy of Development in India (Oxford: Blackwell, 1984). 29 Sudipta Kaviraj, “A Critique of the Passive Revolution”, Economic and Political Weekly, 23:45–47 (1988), 2429–2443. 30 Bardhan used the term “professional elites”, which I have replaced with the term “managerial bureaucratic elites”. 31 Eric Stokes, “Agrarian Relations: Northern and Central India”, in Dharma Kumar and Meghnad Desai (eds.), Cambridge Economic History of India, vol. 2, c. 1757 – c. 1970 (Cambridge: Cambridge University Press, 1983), pp. 36–82. 32 Kaviraj, “Critique of Passive Revolution”, p. 2431. 33 Tirthankar Roy, Rethinking Economic Change in India: Labour and Livelihood (London: Routledge, 2005), p. 42. 34 Morris D. Morris, “The Growth of Large Scale Industries to 1947”, in Dharma Kumar (ed.), The Cambridge Economic History of India, vol. 2, 1751–1970 (Cambridge: Cambridge University Press, 1983), p. 643. 35 See Gyan Prakash, Bonded Histories: Genealogies of Labor Servitude in Colonial India (Cambridge: Cambridge University Press, 1990). 36 See Michael Anderson, “India 1858–1930: The Illusion of Free Labour”, in Douglas Hay and Paul Craven (eds.), Masters, Servants, and Magistrates in Britain and the Empire, 1652–1955 (Chapel Hill, NC: University of North Carolina Press, 2004), and Ravi Ahuja, “The Origins of Colonial

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Labour Policy in Late 18th-Century Madras”, International Review of Social History, 44 (1999), 159. 37 A. Vaidyanathan, “Indian Economy Since Independence (1947–1970)”, in Dharma Kumar (ed.), The Cambridge Economic History of India, vol. 2, 1751–1970 (Cambridge: Cambridge University Press, 1983), p. 953. 38 Government of India, The First Plan, 1951. 39 B. R. Ambedkar, CAD, 4 November 1948. 40 The already existing demand of “Land to the tiller” made exactly such a connection, claiming that those who worked on the land should be the ones to own it. See Ronald J. Herring, Land to the Tiller: The Political Economy of Agrarian Reform in South Asia (New Haven: Yale University Press, 1983). 41 See B. R. Ambedkar, Annihilation of Caste, Mulk Raj Anand (ed.) (New Delhi: Arnold Publishers, 1990).

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3 PRIDE AND PREJUDICE IN AUSTIN’S CORNERSTONE Passions in the Constituent Assembly of India Vatsal Naresh

How to embody the aspirations was the subject of protracted, often bitter debate in India’s Constituent Assembly, an island of calm deliberation amidst the historical currents that swirled through the country” (Khilnani, S. The Idea of India, 1997) “But at the time of the second reading, we developed a fear complex, if I may say so, maybe that it was justified by events that happened in our own country and also by events outside. But the fact has to be noted that it did affect the course of events. H. V. Pataskar, (CAD XI: 18 November 1949)

Independence, ethnic violence, uncertainty surrounding the fate of the princely states, fiscal crises and a war in Kashmir. The Constituent Assembly authored India’s Constitution – the longest such document to date – even as these events unfolded across the subcontinent from 1946 through 1949. Accounts of the tumult, especially of partition, reveal that emotions like fear, anger, enthusiasm and jubilation were collectively felt.1 Yet interpretive studies of the Constituent Assembly Debates seem to say little on the effect of passions on the framers. Was it the case that passions had no role to play? Was the Indian experience a product of reason and interest alone? I argue that emotions and prejudices deeply impacted the writing of the Constitution by deploying analytical tools used by Jon Elster and Andras Sajo in their study of Western constitution making.2 This analysis, I contend, can substantiate key interpretations within existing scholarship 58

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and enrich our understanding of institutional design and deliberation in the Constituent Assembly of India (henceforth “the Assembly”).3 In what follows, I explain how passions affect constitution making in the work of Elster and Sajo. In the next two sections, I examine the role of “hot passions” and “cold passions” respectively. I argue that hot passions affected some members but not the Assembly as a whole. On the other hand, cold passions were pivotal in shaping framers’ arguments and the final document. I conclude with reflections on the implications of these findings and suggestions for further research.

Passions and constitution making In this section, I will explicate the study of emotional reasoning in constitution making, based primarily on the work of Elster (1999, 2013, 2015) and Sajo (2011). I begin with an explanation of emotions in the study of deliberative settings: specifically the effect of emotions on cognition and action. The main emotions and prejudices relevant for the Indian assembly, and the mechanisms through which they impact deliberation follow. The section concludes with an account of the cultural construction of specific emotions. Following the French moralists, Elster (2013, 2015) suggests that reason, interest and passion are the main motivations in assemblies. He defines reason as “the rational pursuit of long-term ends”. It entails judgement about ends, as also about the means necessary to achieve those ends. In the Assembly, for example, members disagreed about whether India should be a “socialist” state or not, and about what being a “socialist” state meant. Even among those who shared the same beliefs about “socialism” as an end, there was disagreement about the means: rapid, state-led industrialisation or decentralised village-republics? For Elster, reason includes concern for “non-consequentialist” values such as “the rights of another” and the “good of the whole”. Interest is understood “as the pursuit of advantage at a scale smaller than that of the relevant collectivity as a whole, and further subdivided into personal interest, group interest, and institutional interest”. Advantage includes the means to achieve personal welfare, and consequently, group or institutional interest.4 For example, Nehru could have argued in favour of greater discretionary powers for the prime minister (or, as he did, for the Executive as a whole) on the expectation that such an institutional expansion would benefit him personally. Conceivably, members belonging to religious minorities could argue for group-specific rights that would benefit their community and, therefore, them. Passion comprises emotions and prejudices: like fear, anger, enthusiasm, contempt and pridefulness. Unlike reason and interest, the constitution-making literature 59

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has largely neglected passions.5 The reasons for this neglect are manifold. Only one need detain us here: the definitions of passions and their purchase on action are the subject of much debate in social psychology and the philosophy of emotions. On the level of observation available to us (archival records of the debates and accounts of the proceedings), reason, interest and passion frequently interact in a manner that prevents clear mechanistic analysis. From Elster (2015), consider the overlaps between reason and interest. One can find cases where “a choice or position may be dictated by reason, yet correspond to the interest of the relevant agents”. The expansion of the franchise for women (in the West and in India) was justified as a necessary means to the pursuit of equality, and simultaneously resulted in advantaging women’s interests.6 One can also find cases where “the choice may be dictated by interest yet correspond to (some conception of) reason”. Consider here the arguments made in favour of Hindi as a national language: the use of Hindi in matters of state would undoubtedly advantage North Indian Hindus (who were the position’s most ardent proponents), though they argued that a “national language” would further the cause of “national unity”, an end that corresponded to reason. It is neither possible nor important to decide whether reason or interest was dominant and, therefore, the motivating impulse. It is sufficient to surmise that reason and interest had at least limited causal efficacy in shaping the positions on these issues and the subsequent choices the framers made. Nathan Brown (2008) illustrates how definitions of reason, interest and passion vary considerably even within the ambit of Elster’s work. Elster himself acknowledges that he has used different (but not contradictory) definitions of reason at different times.7 Brown demonstrates that reason as rationality and reason as disinterested, public well-being may collide in cases where the individual’s rational self-interest is different from the dictates of societal welfare. He also highlights the imprecision in the definition of passion, surveying its conflation with interest in the Federalist Papers as well as in Elster’s previous work. I am primarily concerned with passion as emotion, which includes anger, fear, pity, enthusiasm, and happiness on the one hand; and prejudices like pridefulness and contempt on the other.8 I explore four relevant aspects of passion: (a) characteristic features; (b) types of affect; (c) the mechanisms through which they influence action and (d) the cultural construction of collectively felt passions in deliberative assemblies.

Characteristic features of emotions According to Elster, emotions are states of an organism that are triggered by a cognition or perception and are (often) characterised by 60

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physiological arousal and positive or negative valence that (often) result in characteristic action tendencies.9 I focus on two features of emotions. First, emotions have cognitive or perceptual antecedents. In other words, it is possible to identify the conditions in which certain emotions are evoked. For example, anger is triggered by the negative action of another towards oneself. In Elster’s formulation, emotions are triggered on the basis of beliefs, which the actor develops with respect to received information. So anger, for example, is based on the belief that some information about another’s action is actually the description of a negative action towards the actor.10 Second, emotions shape action and belief. For instance, the action tendency most often associated with fear is “fight or flight”. The influence of emotions on belief is more complicated, and more difficult to identify and study. These beliefs in turn influence how further information is received, and how the actor views action. For example, anger against another may cause future actions by him or her to be seen as negative, thereby generating greater anger. In this way, emotion affects beliefs, beliefs about beliefs, beliefs about action and action itself.

Intensity and duration of affect I now turn to the two types of passion based on the intensity and duration of affect. Passions effect cognition, and therefore action, for varying periods of time. Hot passions get their name from the adrenaline release that actually causes one to feel more energetic when an actor is are under their influence. They are accompanied by a high level of arousal and activity, tend to have a short half-life and dissipate soon. They may also trigger action tendencies immediately – wherein the actor moves from emotion to action without forming new beliefs. Cold passions trigger less intense arousal, and tend to linger, affecting beliefs at several stages, without compelling the actor to react in any characteristic manner at each stage.11 The same emotion can be of both “hot” and “cold” types: for instance, the hot anger of feeling cheated in a minor financial transaction subsides faster than the cold anger of colonial subjects against their imperial oppressors.12 As this example hints, it is possible that repeated episodes of hot emotion (anger at instances of colonial brutality) shape beliefs that result in cold anger against colonial rulers. In relation to displayed features, hot passions are easier to identify vis-à-vis their cognitive antecedents, and the duration from trigger to action is shorter than it is with cold emotions. This distinction is not rigid, and must not be treated as such. Let it suffice to say that hot and cold passions tend to operate through different mechanisms. 61

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Mechanisms through which emotions influence action Three mechanisms – motivated reasoning, urgency and the empathy gap – facilitate emotion’s effect on action and beliefs. Motivated reasoning refers to the beliefs generated as a result of emotions. Returning to an earlier example, anger against another may bias the actor’s belief about new information that comes to light. For instance, a Hindu or Muslim who feels anger because she lost family to communal violence in 1947 may refuse to believe information that suggests a member of the other community committed an unrelated act of kindness. Motivated reasoning operates through changes in beliefs about information, beliefs about beliefs and beliefs about action. Beliefs about beliefs may be affected through wishful thinking and counterwishful thinking. Wishful thinking is the phenomenon of subscribing to a belief because that belief is beneficial to the subject whereas counterwishful thinking is the opposite: the actor believes an event will occur because that event augurs badly for her. Elster (2016) demonstrates how the Norwegian framers mistakenly believed that Bernadotte – the Swedish crown prince and de facto ruler of Norway – would lose the war and a sovereign Norway based on the constitution they framed would be born. They were wrong – he returned victorious and the Norwegians accepted his sovereignty once again.13 In section III I will suggest that pridefulness drove the Indian framers towards the wishful thought that they would be able to fundamentally transform many aspects of the Indian polity within a period of ten years. Once again, it is important to note that the formation of these motivated beliefs is not limited to single instances – over time, beliefs become reinforced, and themselves act as the basis on which new beliefs are formed. A second mechanism, urgency, refers to the desire to act swiftly, regardless of a consideration for the returns.14 It may be further characterised as inaction-aversion and/or it may manifest itself by preventing an actor from gathering more information before acting. Hot passions are more likely to trigger an impulse for urgency than cold passions. Consider the case of the French constituents: on 4 August 1789, they ignored the delay clauses they had themselves adopted one week previously. On 6 August, framers defended their actions by asserting “an elan of patriotism does not need [a delay of] three days”.15 In this way the French framers first acted on the impulse of urgency, and subsequently argued against self-binding on the grounds of inaction-aversion. The public announcement of “surgical strikes” into Pakistani-administered Kashmir in September 2016 is a contemporary example of urgency. The government declared that it felt compelled to act swiftly because the “nation’s anger was greater than ever”.16 62

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The empathy gap refers to the inability to imagine how one would think or act if she were in the other state. Note here that “hot” and “cold” connote something different than they did when used in relation to hot and cold emotions. A hot state refers to an emotionally charged state. On the other hand, a cold state refers to the case where the actor is not influenced by passions. The hot-cold empathy gap may be said to have played a role when the US Congress overrode President Obama’s veto on a bill that allowed governments to be sued for failing to prevent acts of terrorism only to regret their haste the following day. Vice versa, the cold-hot empathy gap results in the actor thinking implausible certain actions that she may commit when in a hot state. This is an important factor not only for its effect on the framers but also in their calculus when devising institutional arrangements that will mitigate the effect of passion in the years after the Constitution’s ratification.17 Recall that passions include emotions and prejudices. I have expounded the features, characteristics and mechanisms of emotions previously. Prejudices refer to standing beliefs about oneself or another. For instance, pridefulness connotes a favourable view of the actor’s attributes, while contempt of another refers to the agent’s belief that a group deserves scorn.18 Like cold emotions, motivated reasoning is the mechanism most likely to operate in the case of prejudices. Broadly speaking, motivated reasoning applies in cases of hot and cold passions, while urgency and the empathy gap have much greater valence in the case of hot passions.

Collectively held passions in assemblies Sajo (2011, p. 18) argues “culture sets situational rules of emotional display, and the proper behaviour at the display is culturally scripted” in that “where the display of outrage regarding slavery was culturally improper, antislavery sentiments were unlikely to develop”.19 The cultural construction of interpersonal emotions and sentiments, for Sajo, is crucial to their role in shaping constitutional deliberation. He argues that “the interaction of moral judgments creates a prevailing majority” which eventually acquires the “normative power of the factual”.20 Sajo demonstrates how, in the eighteenth century, emotional displays became more acceptable, and that laid the foundation for them to be collectively felt. Recall that Elster suggests emotions influence not only action but beliefs as well. To extrapolate beyond, emotions and interests shape conceptions of reason, and consequently interact with reason to shape action. This observation is based on the recognition that there may be many conceptions of reason when understood to include a concern for public well-being.21 Taken together, these arguments suggest that emotions become collectively recognisable 63

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and felt in culturally particular ways, and that they influence the bounds of reason. It must be said, however, that reason retains its value as a motivational mechanism. The present study shall draw focus on hot passions, like fear, anger and enthusiasm, and cold passions like cold fear, contempt, cold anger and pridefulness. Elster (2015) presents numerous instances of hot passions influencing constitution making. Enthusiasm, for example, was crucial in shaping the 1789 French Assembly’s decision to disband the state’s feudal structure in one night. When that same French Assembly surrendered to the demands of the crowd, they did so out of hot, visceral fear. Sajo (2011), on the other hand, contends that it was cold fear which inspired the American framers to enshrine safeguards against absolute political authority, as well as staunch protections of civil liberties. In what follows, I argue that while the conditions for instigating strong, hot passions existed, and indeed affected some members, the majority remained unmoved by them. Cold passions, however, indelibly shaped the constitution makers’ effort.

Hot passions in the Constituent Assembly Constitutions are often written during tumultuous times – following revolutions, war or financial crisis.22 The same is true for the Indian assembly – the framers deliberated while the subcontinent was engulfed in communal riots that had saw hundreds of thousands lose their lives and millions of people get displaced.23 In addition, the fate of the princely states, which constituted a significant portion of British India’s population, was still unknown; and India and Pakistan became engaged in a war in Kashmir starting in October 1947. Gandhi’s assassination in early 1948 only added to the tumult. Amid all this, the Constituent Assembly met publicly in the British-built Parliament House in central Delhi, a few miles from the refugee camps for those who had fled violence in Punjab and other parts of North India. The interim government declared curfew in Delhi on several occasions while the Assembly was in session. Members were given curfew passes, and some members asked for police protection.24 The events that shook the city also impacted the lives of the framers: Jawaharlal Nehru’s official residence served as a makeshift refugee camp;25 V. P. Menon recounts Vallabhbhai Patel’s sense of foreboding when he learned of another riot in the city.26 Partition did not have implications for the physical security of ministers in high office, so Nehru and Patel’s fear of the spread of violence across North India was prudential and, as we shall see later, may have been cold fear. Muslim members of government, and of the Assembly, felt a more immediate sense of danger. Mohd. Saadulla repeated his fear of rioters after his request for police protection was granted.27 64

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Even though the prevailing conditions would be considered conducive to “strong passions”,28 hot passions had little purchase upon the decisions of the framers (although they did motivate some framers’ speeches).29 I argue that this was the result of time delays and conditions of separated responsibilities between the interim government and the assembly and within the assembly between legislative and constitution-writing tasks. I qualify my argument with counterexamples.

(a) Time delays The framers of the Indian Constitution limited the role of hot passion within the Assembly by adopting a drafting procedure with time delays at nearly every step. They imposed a formal time limit for completion of the Constitution and subsequently gave themselves numerous extensions (the duration of the Assembly remains unmatched: it sat for more than three years from 9th December 1946 to 24th January 1950).30 The prolonged duration was partly the product of the Assembly’s legislative responsibilities and partly shaped by the rules the Assembly adopted. The prevailing crises of 1947 and 1948 necessitated prolonged sessions of the Dominion Legislature. In the words of one framer: “then, Sir, as we all know, partition was followed by many tragic events and a heavy responsibility was thrown, not only on our leaders, but also on the Constituent Assembly which began to function both as a constitution-making body and also as the Central Parliament under the Indian Independence Act”.31 The Assembly installed three different sets of rules that slowed proceedings. First, there were delays on the introduction of motions (including articles, Committee reports and amendments) before the house. Most documents had to be distributed at least three days before the Assembly would be in session (amendments had to be filed two days in advance).32 The Assembly’s president would determine the daily agenda, and it had to be announced at least three days in advance of the meeting. These delays ensured that urgency and the hot-cold empathy gap were moderated – neither impulse would survive for three days unless the stimulus returned.33 Second, the Assembly adopted a system of committees, like the Drafting Committee, the Advisory Committee, the Sub-committees on Tribal and Minority Rights, etc.34 The committees, which worked in camera and throughout the year (while the Assembly as a whole was not in session), prepared reports on the topics they were allotted and recommended draft articles for adoption.35 The Assembly shelved discussions on matters under consideration by the committees until they had tabled their reports, and when members put forward provisions for the president’s consideration, they were frequently directed to Standing Committees that carefully 65

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examined the details of the proposed article.36 The committee system introduced a dimension of secrecy to the Assembly’s functioning.37 Elster argues that publicity imposes restrictions on the actors by forcing them to appear to be motivated by reason and prevents them from pursuing unconcealed interest. It also commits them to positions which they cannot easily change for reputational reasons. In private these restrictions don’t encumber actors – secrecy allows actors to bargain from interest, and also to change their minds. Secrecy also serves to isolate actors from the vitiating atmosphere of their surroundings. So the committees could theoretically continue working without concerning themselves with developments outside the meeting.38 Third, the procedure for discussing Draft Constitutions also caused delays. Similar to the Westminster tradition of subjecting a Bill to multiple readings, the two Draft Constitutions were each read twice clause by clause before the Constitution was finally passed. The evidence suggests that the duration (but not the procedure) was accidental: the Assembly voted in favour of a time limit (incidentally opposed by many minority members).39 On 14 July 1947, K. M. Munshi sought approval for the provisions in a report which “suggest[ed] that the Assembly should complete its work by the end of October of [1947]. It is highly necessary that the work of constitution making should be completed at the earliest possible moment”. He provided two reasons for this proposal: the Assembly was no longer encumbered by the Cabinet Mission Plan’s proposal of federal groupings and double majorities thereby rendering it a “sovereign body”; and, “things are moving so fast that we cannot go on at the pace at which we intended to go before”. Munshi’s plea for urgency was opposed on several grounds, mainly by members of indigenous groups and Muslims.40 Nehru intervened to suggest that the debate was irrelevant: the Assembly would attempt to complete its task “during [the present] session and take up the remainder in October or November”.41 The motion passed, and thus the Assembly incorporated the time limit in its rules. The framers subsequently dithered on whether this was a formal deadline or an academic one, and by 29 August, they were speaking of completing their task by March 1948.42 When the two Draft Constitutions were presented, each was discussed clause by clause. The Constitution was not adopted until November 1949 and enacted in January 1950, more than two years after the first time limit was scheduled to end. The cumulative effect of these delay mechanisms was the containment of urgency and the empathy gap. In addition to the sobering effect of time between proposals and discussion, all decisions (including those that might have been made under the influence of passions) were brought before the Assembly for approval in the form of the Draft Constitutions. This allowed 66

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the framers to reconsider their decisions in a cold state, and make changes accordingly.43

(b) Separation of responsibilities: constitutional and legislative, and legislative and executive The Constituent Assembly was initially tasked only with writing a Constitution – it was a pure convention according to the Cabinet Mission Plan.44 The Indian Independence Act changed this – it dissolved the Central Assembly, hitherto the federal legislature, and made the Constituent Assembly the Dominion Legislature. This act of the British Parliament converted the Constituent Assembly into a post-facto mandated legislative assembly.45 Elster (2013) argues that legislative assemblies are prone to deviations from reason in three ways. First, aptitude declines as a result of the extra burden on the framers. Second, “decisions made by the assembly wearing its legislative hat may unduly affect the decisions it makes wearing its constitutional hat”.46 Third, membership and interest in a mixed body may result in an incentive to enhance the power of the legislature in the Constitution.47 A fourth concern is that the framers might be wearing their constitutional hat when confronted with a crisis and, consequently, make impulsive decisions about the Constitution. How did these mechanisms impact the Indian assembly, and what were the implications for hot passions? Recall the lament that partition brought with it the additional burden of legislation. The transition to a legislating assembly served as a time-delay mechanism because it divided the aptitude on hand for constitution making. We turn, once again, to Pataskar’s speech on 18 November 1949: If these events had not happened probably we would have stuck to our original plan of having a scientific, systematic, complete federation of Units. But these events were combined with the task of framing the Constitution and this largely affected our outlook, which was till then consistent, and also affected many of the aspects of our task. The suddenness of the intervening events blurred, to some extent, our vision. A strong Central Government suddenly became a matter of urgent necessity. Here Pataskar addressed the second issue with mixed assemblies – the tendency towards path dependence in legislating and constitution-making roles. He argued that the legislative challenges with which the framers had to cope altered the Assembly’s outlook. Taken together, Pataskar’s observations imply that the mixing of tasks affected the process of constitution making over a long period of time. 67

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The Assembly debated the nuances of managing legislative and constitutional tasks, and resolved to meet separately, under different presiding officers.48 This resolution, in and of itself, would be an insufficient safeguard against the fourth concern (of crises striking while the framers wore their constitutional hats) because a crisis could occur at any time, upending the plan to meet at different times for different tasks.49 And many such crises did occur, although it’s difficult to assess if any were addressed first in the Assembly.50 The Interim Government met to consider these issues. Attendees included the British (and later Indian) Viceroy/Governor-General; the top-ranking members of the Indian cabinet (Nehru, Patel and others) and the relevant bureaucrats or armed forces officials. They had discretionary and emergency powers, and sought and procured greater leeway from the legislature.51 The government was answerable to the Legislative Assembly, but it did not require its sanction. It is likely therefore, that the fourth concern was mitigated by the presence of the Cabinet, which alone held the authority to carry out executive action to respond to unfolding crises. All Cabinet ministers were members of the Assembly. Some, like Nehru, Patel, B. R. Ambedkar, Rajendra Prasad, and Maulana Azad, held key positions in multiple Assembly committees. Austin (1999, 23 fn 65) referred to the overlapping memberships of the “oligarchs” as triangular. “Fourteen of the eighteen [Congress] Working Committee members sat in the Assembly. . . . Five members of the W. C. were also Cabinet Ministers”. In reference to the interests of members in a mixed assembly, Elster’s third concern, the Indian Assembly presented a complex picture. The institutional interest of the executive countered the institutional interest of the legislature.52 The channels through which hot passions could move the Assembly were rife with stumbling blocks: time delays, committees, dual institutional burden and differentiated executive responsibilities. Together, this complicated network of institutional features mitigated the effect of hot passions by reining in impulses for urgency and the empathy gap, though not entirely without exception. These same features, I will argue, facilitated cold passions that shaped fundamental institutional questions in the Constitution.

Cold passions I now argue that cold passions undergirded two paradigms in the Indian Constitution–making experience: the framers’ quest for “national unity”;53 and the project of “transformational constitutionalism”.54 I suggest that cold fear and, to a lesser extent, cold anger and contempt shaped the arguments assembly members offered to reject political safeguards for religious 68

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minorities in their aim to secure “national unity”, a capacious concept that included the nation-state’s physical integrity, a sense of shared nationhood, etc. The debates on the powers of the “transformational state” – born out of an interpretation of constitutionalism that viewed the document as an avenue for social and political transformation – showed how pridefulness ran through the framers beliefs about themselves and the people they were framing. I relate my study of passions to these conceptual frames because they have been developed by interpretive scholars who have worked on the debates. The argument is that the study of emotional reasoning can supplement these reason-centric analyses, although by no means is this an exhaustive account of cold passion in the Indian assembly.

(a) ear, anger and contempt in securing national unity “National unity” was a crucial motivating anxiety for the Indian framers.55 Bajpai (2011) suggests this anxiety included concern for the newly born nation-state’s physical integrity; cultivating a sense of nationhood among people divided by class, caste, religion and language; and rapid progress towards economic “modernity” as a remedy to the crippling poverty comprised this concern for national unity. These concerns are not unique to India – every polity seeking to establish a new legal order confronts these questions in some way. Nor is it the case that the Indian framers had no precedent to follow, in contrast to their eighteenth-century counterparts.56 However, the particular construction of this concern inspired particular emotional responses, and consequently resulted in a unique constitutional document. Far and away the dominant component of the anxiety was “the minority question” – how should India’s minority religious and caste groups be accommodated in state institutions? In the imagination of some nationalist leaders, Hindu–Muslim conflict was “purely a British creation . . . [the differences] were not in existence before their advent”.57 Many nationalist accounts accused the British of a policy of “divide and rule”, wherein the colonial rulers sought to manufacture divisions among Indians along religious and caste lines to exercise and justify their control over the colony. The nationalists identified minority political safeguards – especially communal electorates – as the institutional manifestation of British perfidy. In Bajpai’s words (2011, p. 87), “Partition provided decisive proof, if any were needed, of the destructive effect of minority safeguards for national unity”. The uncertainty at the eve of British withdrawal converted the threat to the physical integrity of British India from a prospective problem to an immediate challenge. The negotiations between the Muslim League, the Congress and the British continued until after the Assembly began 69

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deliberating. Partition and the calling forward of the British departure were announced seven months into the Assembly’s discussions.58 After India attained dominion status on 15 August 1947, a slew of other challenges to national unity emerged. By late 1947, India was fighting a war in Kashmir, the interim government was in the throes of a fiscal crisis and the fate of other princely states, like Hyderabad and Manipur, was still in question. The uncertainty about India’s territorial frontiers manifested itself in the fluctuation of members attending the Assembly’s proceedings.59 It is conceivable that the framers were deeply anxious about the question of national unity. I will now examine the debates about minority political representation. Bajpai (2011) recounts how the Assembly’s approach to minority rights moved from an acceptance of separate electorates for religious and caste minorities to a complete disavowal of special political provisions for religious minorities and reserved seats in an undivided electorate for Dalits and Scheduled Tribes.60 She suggests that the liberal-democratic aspiration of the Indian framers led them to deny such provisions on the basis that they were “divisive” and “primitive”. The framers’ concern was simultaneously backward- and forward-looking: they believed these provisions would undermine “national unity”, and their adoption would prove that Indians were unfit to take their place among the liberal-democratic states of the West. I suggest that emotional motivations were interacting with imperatives of reason by working through the debates on special provisions for minorities. To be sure, there were many reasons to be prudentially afraid of the threats to national unity, and to oppose minority provisions. Each of the impending crises presented a near-existential threat to the territorial integrity of the nation-state for which they hoped to author a constitution. Recall that prudential fear connotes a rational estimation of the possibility that something bad might happen. In relation to minority provisions, it could be argued that separate electorates and other group-specific representative institutions foster communitarian identification and circumscribe representatives’ capacity to represent all their constituents. The identification of minority provisions as the root cause for partition and the kernel responsible for the threats to national unity, however, entails non-reasonable argumentation as well. After all, the drastically reduced and disempowered Muslim minority demanded separate electorates to guarantee their representation, not to perpetuate “divide and rule”, as these members feared. Upon the rejection of separate electorates, they made the case for reserved seats in a combined electorate. The Assembly rejected this proposal too. Consider the following examples. Nehru voiced the fear of a fissure between minority claims and national unity when he declaimed “there is no group in India, no party, no religious community which can prosper if 70

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India does not prosper. If India goes down, we go down, all of us, whether we have a few seats more or less, whether we get a slight advantage or we do not”.61 Vijayalakshmi Pandit added, “If the larger interest suffers, there can be no question of real safeguarding of the interest of any minority”.62 Both speakers suggest that partial interests are bound to suffer if the interests of the whole suffer, and their speeches (ostensibly) appeal to reason. In other instances, emotional reasoning is more evident. Tandon asked of the British “If a hundred years or for that matter twenty years ago, the right of separate electorates were given to different sects of your country, what sort of government would [you] have had today? Would you not have had continuous civil wars?”63 The speaker here expressed cold anger against those he held responsible for committing a perceived injustice against him or those he spoke for. Ray called separate electorates “an echo of medieval times” which were “political devices . . . [that] serve the interests of our alien rulers”.64 Here we see evidence of contempt and cold fear. Speaking with derision about the provisions as unsuitable by virtue of their primitivism, rather than their merits in institutional terms is evidence of the former; and the assessment that these provisions were the design of alien rulers rather than minority communities seeking safeguards betrays cold fear. Pant chided the minorities for the “unwholesome and to some extent degrading habit of thinking always in terms of communities and never in terms of citizens”, and warned that “the minorities if they are returned by separate electorates can never have an effective voice. . . . Will you be satisfied with the pitiable position of being no more than advocates?”65 In another speech, Pant argued partly from reason: “If in a democracy, you create rival loyalties, or . . . a system in which any individual or group, instead of suppressing his extravagance, cares nought for larger or other interests, then democracy is doomed”. Simultaneously, “he admonished advocates of separate electorates: ‘apart from other things, it is a complete anachronism today. In a free country, nobody has ever heard of separate electorates.’ ”66 Here too, contempt for the primitivity of the proposal is clear. After the demand for separate electorates had been withdrawn, a report Vallabhbhai Patel authored confidently asserted: “the abolition of separate electorates had removed much of the poison from the body politic”. Each passion assessed here is linked to national unity in a nuanced way, and was likely shaped over time. Cold fear stems from the belief that the fragile nation-state is in existential danger; cold anger connotes the anticolonial ire directed at the British for their injustices against Indians; and contempt applied to the proposal and the people that were holding India back from achieving the progress it had been denied under colonial yoke. Political safeguards for religious minorities were dispensed with entirely by the time the second draft Constitution was adopted. The fascination 71

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with removing communitarian representation should not, however, be seen as a complete disavowal of British colonial institutions. In what follows, I consider the framers’ attempt to author a “transformative constitution”, and the prideful reasoning that undergirded, facilitated and justified it.

(b) Transformational constitutionalism and pridefulness Mehta (2010) and Dasgupta (2014) have argued that the fundamental aim of constitutionalism in India was different from the Western constitutions that preceded it. For the Indian framers, rights that protected against state tyranny were necessary, but insufficient, ends. The ultimate goal was the eradication of poverty and illiteracy and securing “national unity” that would not be threatened by religious or social conflict. As demonstrated earlier, this “transformative constitutionalism” was in part a response to sustained cold fear of the disintegration of the newly created state. In the struggle against colonialism, the British-educated Indian elite accepted the liberal principles of individual autonomy and representative democracy, but they challenged the notion that Indians were unfit for these institutions.67 Under Mohandas Gandhi’s leadership the movement forged deep links with the rural and urban poor. Like the American colonists whose constitutional vision “stemmed from a deep distrust of power”, the Indians objected to the arbitrary and unaccountable British institutions.68 However, the Indian elite’s marked superiority in material wealth drove them to “pity” the poor and socially oppressed.69 Once India was free, they would have to confront many other social challenges – including caste discrimination, economic deprivation and religious strife. The leaders of the national movement saw the Constitution as the embodiment of the principles by which a self-determining state would address these problems. How would this transformation be constitutionally realised? Dasgupta (2014) argues that the colonial state constructed a vast body of rules and norms that allowed its officials to borrow when administering far-flung parts of the diverse colony. The British developed an interventionist apparatus to bring “order” and “governability” to the chaotic, “uncivilised” subcontinent. In the process, executive institutions like the police and the civil services became the powerful backbone of British rule, unlike the legislative parliaments in contemporary Europe. Administrative law grew alongside, even ahead of public Law in India. The colonial state’s coercive apparatus was further strengthened in the twentieth century to deal with the national movement.70 In postcolonial India, the Congress elite sought to use this extensive executive machine to oversee social transformation. The Assembly adapted many technical instruments – like the committee system and some rules and procedures – from the British Government of 72

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India Act of 1935. Similarly, a Westminster system was deemed most appropriate, albeit with amendments to the structure of the upper house and the head of state’s position. More controversial, by far, was their attempt to continue the colonial practice of preventive detention, which allowed colonial administrators to arrest and detain political prisoners without seeking a warrant or magisterial permission. In 1919, Gandhi led his first nationwide protest against the Rowlatt Act, which extended preventive detention to a peacetime provision. The interim government was in favour of retaining this provision as well as the legal sanction to conduct searches and arrests without a warrant as a reasonably restriction on the “Fundamental Rights” accorded to citizens. For the sole communist member in the Assembly, Somnath Lahiri, the article evoked fear. His home was searched and some of his belongings seized during his short term as a member of the Assembly.71 Lahiri, and others along with him, charged the framers with writing the Constitution “from the point of view of a police constable”.72 Ambedkar, defending the article, sensed that “Article 15 had been violently criticized by the Indian public”.73 The Home Minister, Patel, resisted efforts to introduce oversight measures on arrests and detentions, arguing, “It would not be possible for the Executive to surrender their judgement”.74 Although Ambedkar successfully passed an amendment that would make it necessary for an Advisory Board to clear such measures, the government found a way to restore its unhindered authority in the matter. An amendment was carried on 15 November 1949, just 10 days before the Assembly approved the Constitution, “embodying the views that the Home Ministry had expressed previously”.75 According to Dasgupta (2014) the framers, especially those who Austin (1999) calls oligarchs, saw the administrative machine as an asset for progress and change rather than a system of power unsuited for liberal democracy. They identified colonial oppression with the identity and motivations of the colonial administrators, not the excess of state power per se. If led by the right persons (Indians), they believed an extensive state machinery was necessary for “social transformation”. The defence of preventive detention provisions, and subsequent manoeuvring in spite of “violent criticism” from the Indian public, relied on prideful assertions about the virtue of the elite that would hold power in postcolonial India. Recall that pridefulness is a prejudice wherein the actor holds a favourable view of herself, her actions and her beliefs. In Elster’s words, “we find it both in the framers and in the assumptions they make about the framed”.76 Now consider the following statements made by members of the Assembly. Brajeshwar Prasad, speaking on the subject of the state’s expansive powers of preventive detention, declared: “It is wrong to regard the State with suspicion” since “today it is in the hands of those who are utterly incapable of doing any wrong to the people”.77 Responding 73

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to Hussain Imam’s motion introducing checks on the state’s use of preventive detention, Lakshmi Kant Maitra proclaimed: May I tell him that the situation is now completely changed? We must realise that we are going to start a new State of our own, absolutely independent State, and that the Central Government, the Union Government must be armed with certain powers which can be used by it, not for frivolous reason, but for the interests of the State itself . . . therefore it is not a question of civil liberties being in danger; it is a question of high reasons of State, and reasons of State should take precedence over everything.78 The call to suspend suspicion of the state was novel: it was hitherto considered an essential tenet of liberal constitutionalism. Pridefulness is also evident from the debates on the Assembly’s legitimacy and competence. The framers were chosen by provincial legislators who in turn were elected on the basis of a partial franchise. The Congress had an overwhelming majority, and upper caste Brahmin Hindus held nearly 80 per cent of the seats – vastly disproportionate to their share of the country’s population. The debates around the question of the Assembly’s legitimacy arose on numerous occasions, triggered by related debates on amendments and ratification. As in the case of debates on minority provisions, reason, interest and passion interacted in the speakers’ arguments. It must be further stated that my observations pertain to the majority position, rather than the minority that did question the Assembly’s legitimacy. Consider first the position of B. R. Ambedkar, chairman of the Drafting Committee. While introducing the Draft Constitution on 4th November 1948, he addressed the proposal that drafters had erred in making it difficult to amend the Constitution. Taking aim at those who questioned the Assembly’s legitimacy, Ambedkar said: 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. 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 Parliament will have an axe to grind while the Constituent Assembly has none. That is the difference between the Constituent Assembly 74

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and the future Parliament. That explains 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 the same power to amend it.79 The italicised phrases above suggest that Ambedkar believed the Constituent Assembly was free from partisan or partial interests. On 5th November 1948, Seth Damodar Swarup moved a motion to defer consideration of the Draft Constitution until a new constituent assembly was elected through adult franchise.80 Pandit Balkrishna Sharma and Shibban Lal Saxena argued against the motion, citing the lack of time, and suggesting that the framers could represent the disenfranchised even though they did not elect them. S. Nagappa mounted a more vehement criticism of Swarup’s motion, stating: “We have been elected by the representatives of the people and every member represents some thousands of people. No doubt he does not represent every one of the people that are in that province but he represents the educated that are the cream of the people”.81 Here Nagappa is making the argument that representing the educated elite is the same as representing the whole – a prideful assumption about the framed. The question of the Assembly’s representativeness also arose on other occasions. For instance, K. Santhanam’s assertion that “there was hardly any shade of public opinion not represented in the Assembly” was shared by “many other persons” Granville Austin interviewed.82 In an earlier debate on the duration of the Assembly, K. M. Munshi declared, “This house is sufficiently representative of all interests and there is no reason why we should unnecessary lengthen out the proceedings”.83 The members had an institutional interest in refuting Swarup and Mohani’s motions, which they voted down right after Nagappa’s speech. Their speeches reflected a prideful view of the Assembly and, in at least one instance, of the population they represented.

Notes 1 Newspaper reports in the Hindustan Times, The Hindu, and the Times of India from August 1947 narrate accounts of horrific violence in the northwest and the east; as well as the excitement and joy of independence in Delhi and many other cities. The poetry and prose of Saadat Hasan Manto, Faiz Ahmed Faiz, and Amrita Pritam portray the anguish of Partition, and speeches from the Constituent Assembly and on All India Radio on 15 August 1947 depict the outburst of collective jubilation. 2 See J. Elster, Alchemies of the Mind: Rationality and the Emotions (Cambridge: Cambridge University Press, 1999); J. Elster, “The Optimal Design

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of Constituent Assemblies”. In Securities Against Misrule: Juries, Assemblies, Elections (Cambridge; New York: Cambridge University Press, 2013); J. Elster, The Political Psychology of Constitution-Making (Unpublished manuscript, 2015); A. Sajo, Constitutional Sentiments (New Haven: Yale University Press, 2011); and A. Sajo, “Emotions in Constitutional Institutions”, Emotion Review, 8:1 (2016). 3 See R. Bajpai, Debating Difference: Group Rights and Liberal Democracy in India (New Delhi: Oxford University Press, 2011); S. 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 the Middle East, 34:2 (2014), 228–242; and U. Mehta, “Constitutionalism”, in N. Jayal and P. Mehta (eds.), The Oxford Companion to Politics in India (New Delhi: Oxford University Press, 2010), pp. 15–28. 4 Elster’s commitment to methodological individualism leads him to specify that group interest and institutional interest are pursued by individuals comprising the collectivities rather than groups. 5 When scholars have acknowledged emotions, they have argued that emotions are important only for bringing about the conditions necessary for constitution-making to begin. 6 The debate on political safeguards for religious and caste minorities provides an interesting contrast. 7 See Elster (2015, fn 10). 8 This is not a definition of passion, merely a statement about what is studied here. 9 This definition is far from controversial. Qualifications in parentheses are mine. For an overview of the philosophical debates on emotion, see de Sousa (2013). 10 Some scholars suggest emotions are judgements. 11 Hot passions correspond broadly to occurrent emotions, while cold emotions connote emotional dispositions (contingent and standing). The differences between hot and cold passions are the subject of much contestation in the philosophy of emotions and the study of social psychology. See Goldie 2009; Sajo 2011, 2016; Elster 1999, 2009, 2015. 12 This framing is distinct from Hirschmann (1970), who examined emotions as having hot or cold effects on cognition. The suggestion here is that the same emotion (e.g. anger) can influence an actor in hot and cold ways, and have differing consequences. 13 It is a different matter that their enthusiasm and resultant wishful thinking helped them secure a constitution far better than one they might have claimed had they accurately estimated the Swedish forces. See Elster (2016). 14 See Elster (2009) for the difference between impatience and urgency. While the former refers to a preference for achieving ends sooner rather than later, the latter addresses the question of acting. 15 Kessel (1969, p. 127). Cf Elster (2015). 16 S. Talukdar, “Uri Terror Attack: Modi’s Biggest Headache Isn’t Pakistan, But an Enraged Indian Public”, Firstpost, 21 September 2016, available at www.firstpost.com/world/uri-terror-attack-modis-biggest-headache-isntpakistan-but-an-enraged-indian-public-3013078.html (last accessed 18 October 2016). 17 Elster (2015).

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18 Exceptions are numerous. Contempt, for example, can be triggered by the belief that another has performed cowardly action. 19 Sentiments for Sajo connote the coalescing, publicly displayed emotions, not all emotions per se. 20 See Sajo (2011, p. 21). 21 See Elster (2004, p. 81). According to some philosophers, emotions actually enhance reason by limiting the acceptable ends the actor considers. See de Sousa (2013). 22 America and France (1789) are the most prominent “revolutionary” constitutions; Norway (1815) and Germany (1948) are examples of postwar constitution making; and Iceland’s (2010) process was initiated as a response to the global financial crisis. Sweden (1969) is a prominent counter-example. See Elster (2013, 2015). 23 A conclusive account of the casualties of partition is yet to be commissioned. According to Paul Brass, between 2,00,000 and 5,00,000 people died in the Punjab alone. See P. Brass, The Production of Hindu-Muslim Violence in Contemporary India (Seattle: University of Washington Press, 2003). 24 Austin (1999, 55n77) mentions “Begum Rasul, Mohd. Saadulla, and others requested protection”. 25 Sarvepalli Gopal describes Nehru’s feeling of helplessness and panic in the face of this violence. See S. Gopal, Jawaharlal Nehru: A Biography (Delhi: Oxford University Press, 1985). 26 See V. P. Menon, The Transfer of Power in India (Princeton, NJ: Princeton University Press, 1957). 27 See Prasad papers, File 1-H/47-8-9 Cf. Austin (1999, 55–56 fn 77). 28 See Elster (2015). I read strong passions as meaning a heightened impact of (hot and cold) emotional impulses. 29 The hot passions of some members, who expressed their concerns about prevailing conditions, and about provisions the government successfully passed through the Assembly were counteracted by a majority’s cold passions. 30 It could be argued that the framers had an interest in delaying the Constitution’s drafting – they would gain from remaining in power. Although that is possible, I would argue that it is unlikely given that the Assembly was also made the legislature thereby guaranteeing the framers’ positions until the first election. This is discussed in greater detail here. I would also add that the framers imposed this limit on themselves through a motion passed on the floor of the House. I cannot speak to the legal implications of the motion’s adoption. 31 H. V. Pataskar CAD XI: 18 November 1949 in Constituent Assembly debates: Official report. (vol. I–XII). (1999). New Delhi: Reprinted by Lok Sabha Secretariat. 32 See Rule 38 (pp. 452–459) in B. Shiva Rao, The Framing of India’s Constitution, Vols. I–V (New Delhi: Indian Institute of Public Administration, 1967). 33 Jon Elster helpfully pointed out that the French framers adopted a similar provision (with a caveat) but overrode it because emotional impulses swayed them to do so. It is possible that the same could have happened in the Indian case, although subsequent arguments should establish why that was unlikely to happen. Yet, the absence of evidence is not the evidence of absence, and only a close historical examination of the Legislative debates and contemporary

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media reports would conclusively settle the argument in my favour. Unfortunately, such an examination is beyond the purview of this chapter. 34 Austin (1999, 22 fn 62): “the Assembly had a total of more than fifteen committees”. 35 As its name suggests, the Drafting Committee was tasked with producing the draft constitutions. 36 See Austin (1999) and Shiva Rao V (1967, pp. 432–433). 37 See Elster (1999, 2013). 38 This does not account for the experiences of individual members outside the Assembly. It is also worth adding here that the committees were not the only meetings closed to the public gaze. Austin (1999, pp. 27–28, 387– 396) describes the Congress Assembly Party, exclusive to the Congress party members and those elected with the party’s support in the Assembly, as a crucial site of decision making. He suggests that nearly every provision was brought before the Assembly Party before being presented to the Assembly. It was here, he contends, that the “oligarchs” voiced their frank, uninhibited opinions. 39 See CAD IV: 14 July 1947. 40 Members of the Muslim League, who had just joined the Assembly, like Naziruddin Ahmed, asked for “a little time to study the previous report, the debates, and other relevant papers, before [they] can take a useful part in the House”. Proponents of Hindustani like R. V. Dhulekar saw an opportunity to amend the Objectives Resolution and declare Hindi/ Hindustani as the “national language”. (He proceeded to express his support for the October time limit after being pressed for his response on the motion by the President of the House.) Jaipal Singh opposed the time limit because the excluded areas sub-committee would not be able to produce its report by the end of August; while Aziz Ahmad Khan was among those who argued that more time was necessary for debate, even on subjects other than minority affairs. The president’s view is instructive: he believes the only relevant question is that of minority sub-committee reports. He deemed issues like fundamental rights as resolved. B. Pocker Sahib Bahadur supported the amendment without declaring why. 41 Ibid., p. 18. 42 See CAD V: 29 August 1947. 43 The Drafting Committee made numerous changes, especially to fundamental rights articles. For the most part, they reneged on earlier promises that would provide greater protection of civil liberties. See Austin (1999, pp. 101–112). 44 See Elster (2013, p. 206). 45 A mandated constituent legislature is a “legislature elected with a dual legislative and constituent mandate”, while a self-created legislating assembly refers to “assemblies elected to write a constitution which then also assume legislative powers”. The latter better describes the expansion of the Assembly’s role to include legislative powers, while the former offers a more accurate depiction of how the Assembly came to acquire that status. At least formally it was British rule that mandated that the Constituent Assembly would replace the Central Assembly. I believe Elster (2013, p. 209) is wrong to classify the Indian Assembly as a self-creating legislative assembly. 46 Elster (2013, p. 211).

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47 The motivations at play could be institutional or personal interest, and, importantly, pridefulness. I demonstrate how pridefulness shaped some of the Assembly’s position in the following section. 48 “It is not only possible but necessary for the proper functioning of the Constituent Assembly in its two capacities that its business as a constitution-making body should be clearly distinguished from its business as the Dominion Legislature. . . . [F]or the purpose of avoiding complications and confusion, different days, or separate sittings on the same day, should be set apart for the two kinds of business” (Shiva Rao 1967 I, p. 582). From the debate on this question, Hussain Imam’s proposal is worth noting. If the framers had accepted it, the problem of path dependence might have been further compounded: “I do not think that we should embark on the full scope of the legislative body, having one hour for questions and the rest for other legislative functions. That would be really taking away too much of the time from constitution making and delaying the work which is in hand . . . I suggest that the Honourable President may adopt the rules of the Legislative Assembly regarding adjournment motions so that if and when necessary matters of urgent public importance may be ventilated before this House”. CAD V: 20 August 1947. 49 Recall here a discussion of the French framers in 1789. 50 A close study of the Constituent Assembly (Legislative) Debates, outside the scope of the present work, would be necessary to demonstrate that. 51 At this time the hurdles on executive action were those that constrained British rule. For an example of increasing discretion see the debates on the Armed Forces Special Powers Bill in Constituent Assembly of India (Legislative) Debates, Official Report (vol. II: 11–12 December 1947) Cf. CITE Bhatnagar The Wire story. 52 The group interest of the Congress party might also interact with the other two interests. That is not to say that these interests always collided – the story of pridefulness in the Assembly is one of coalescing interests and motivated reasoning among a majority of the framers cutting across interest lines. 53 See Bajpai (2011) and Mehta (2016). 54 See Dasgupta (2014). 55 Mehta (2016) writes: “The underlying argument of this paper is that the themes of crisis, impending disunity and the prospect of anarchy, all worked to produce a collective self-understanding in which a concern with national unity were deeply, indeed constitutionally, braided with the sanction and the amplification of political power”. Bajpai (2011, p. 70) concurs: “National unity was the primary concept in [the framers’ conceptual] vocabulary, in relation to which the other concepts were construed”. Anxiety is used here and elsewhere to connote concern – reasonable, interest-based or passionate. 56 See Mehta, U. (2016) CITE. 57 Purushottamdas Tandon (CAD I: 68) cf. Bajpai (2011, p. 86). While blaming the British was a constant refrain, many other members acknowledged that “[their] country or community stands guilty for creating social barriers and divisions” (R. V. Dhulekar CAD II: 303). See Bajpai 2011, pp. 85–87. 58 See Arvind Elangovan’s chapter in this volume for a detailed exposition of the negotiations and prevailing uncertainty. 59 After partition was announced members of the Muslim League from Indian provinces joined the Assembly. Ambedkar’s seat was allocated to the

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Pakistani Assembly, and he had to return with Congress support. Throughout the duration of the Assembly, new members were being sworn in from the princely states. 60 See Bajpai (2011, pp. 116–170). 61 CAD II, 323 cf. Bajpai (2011, p. 78). 62 CAD II, 278 cf. ibid. 63 CAD I, 68. 64 CAD V, 268. 65 CAD II: 332. 66 CAD V: 224 cf. Bajpai (2011, 77 fn 7 and 80 fn 11). 67 See Mehta (2010). 68 Ibid. 69 Ibid. In the words of Jon Elster: “the action tendency of pity is to alleviate the suffering of the person one pities. But this might also be cause by a sense of injustice”. Pity does not connote equal feeling – it was possible to pity the poor without considering them equals. 70 It was the product of the anxiety that gripped colonial rulers – they were convinced of their racial superiority, but they needed to develop extensive protection against “native” insurrection. 71 It is difficult to specify whether his fear was hot or cold; or visceral or prudential. The memories of searches might have provided hot impulses for visceral fear. However, his fear may also be construed as prudential, in that this empowered the government to arbitrarily detain and intimidate persons. Gautam Bhatia’s chapter in this volume explores the prejudices against certain “political creeds”, and Patel’s belief that some political speech ought to be suppressed. See CAD III: 29 April 1947. 72 Ibid. 73 Article 15 in the Draft Constitution allowed for Preventive Detention. Austin (1966, p. 111). 74 Ibid. 75 Ibid. 76 Elster (1995, p. 384). 77 CAD VII, 18, 12–13. 78 CAD V, para 54 (22 August 1947). 79 CAD VII, 4, 323 (also CAD VII: 38 in online edition). Italics mine. 80 Maulana Hasrat Mohani moved a motion that entailed the same deferral the previous day. He argued that an assembly elected by separate electorates was unrepresentative. For both motions and the debates surrounding them, see ibid., pp. 40–250. 81 CAD VII: 198 (online edition) Italics mine. 82 See Austin (1966, 13 fn 48). Austin believed the elite character of the Assembly was a good thing, for “the masses [had] a growing social consciousness, but little political awareness”. 83 CAD IV, I, 13 (online version).

References Austin, G. (1999). The Indian constitution: cornerstone of a nation. Delhi; Oxford: Oxford University Press.

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B. Shiva Rao. (1967). The framing of India’s Constitution (Vols. 1–5). New Delhi: Indian Institute of Public Administration. Bajpai, R. (2011). Debating difference : group rights and liberal democracy in India. New York: Oxford University Press. Bhatnagar, G. V. (2016, 11 September). AFSPA Was Strongly Opposed in the Constituent Assembly Debates. Retrieved 18 October 2016, from http://thewire. in/65313/afspa-was-strongly-opposed-in-the-constituent-assembly/ Brass, P. R. (2003). The production of Hindu-Muslim violence in contemporary India. Seattle: University of Washington Press. Brown, N. J. (2008). Reason, Interest, Rationality, and Passion in Constitution Drafting. Perspectives on Politics, 6(4), 675–689. Constituent Assembly debates: Official report. (1999) (Vols. 1–12). New Delhi: Lok Sabha Secretariat. Dasgupta, S. (2014). ‘A Language Which Is Foreign to Us’: Continuities and Anxieties in the Making of the Indian Constitution. Comparative Studies of South Asia, Africa and the Middle East, 34(2), 228–242. de Sousa, R. (2013). Emotion. The Stanford Encyclopedia of Philosophy. Metaphysics Research Lab, Stanford University. Retrieved from https://plato. stanford.edu/archives/spr2014/entries/emotion/ de Sousa, R. (2014). Emotion. In E. N. Zalta (Ed.), The Stanford Encyclopedia of Philosophy. Metaphysics Research Lab, Stanford University. Retrieved from https://plato.stanford.edu/archives/spr2014/entries/emotion/ Elster, J. (1995). Forces and Mechanisms in the Constitution-Making Process. Duke Law Journal, 45(2), 364–396. Elster, J. (1999). Alchemies of the mind: rationality and the emotions. Cambridge: Cambridge University Press. Elster, J. (2004). Closing the books: transitional justice in historical perspective. Cambridge, UK; New York: Cambridge University Press. Elster, J. (2009). Urgency. Inquiry, 52(4), 399–411. Elster, J. (2013). Securities against misrule: juries, assemblies, elections. New York: Cambridge University Press. Elster, J. (forthcoming). The Political Psychology of Constitution-Making. In Jon Elster, Roberto Gargarella, Bjorn-Erik Rasch and Vatsal Naresh (Eds). Gilmartin, D. (1998). Partition, Pakistan, and South Asian History: In Search of a Narrative. The Journal of Asian Studies, 57(4), 1068–1095. https://doi. org/10.2307/2659304 Hirschman, A. O. (1977). The passions and the interests: political arguments for capitalism before its triumph. Princeton: Princeton University Press. Kessel, P. (1969). La nuit du 4 août 1789. Paris: Arthaud. Khilnani, S. (1997). The idea of India. New York: Farrar, Straus, Giroux. Mehta, U. S. (2010). Constitutionalism. In N. G. Jayal and P. B. Mehta (Eds.), The Oxford companion to politics in India (pp. 15–28). New Delhi: Oxford University Press. Mehta, U. S. (2016). Indian Constitutionalism: Crisis, Unity, and History. In S. Choudhry, M. Khosla, and P. B. Mehta (Eds.), The Oxford handbook of the Indian Constitution. Oxford: Oxford University Press.

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Negretto, Gabriel. (forthcoming). Constitutional Conventions in Democratic Constitutional Orders: The Problem of a Legally Limited Convention. In Jon Elster, Roberto Gargarella, Bjorn-Erik Rasch and Vatsal Naresh (Eds). Sajó, A. (2011). Constitutional sentiments. New Haven: Yale University Press. Sajó, A. (2016). Emotions in Constitutional Institutions. Emotion Review, 8(1), 44–49. https://doi.org/10.1177/1754073915601224 Talukdar, S. (2016, September 21). Uri Terror Attack: Modi’s Biggest Headache Isn’t Pakistan, but an Enraged Indian Public - Firstpost. Retrieved 18 October 2016, from http://www.firstpost.com/world/uri-terror-attack-modisbiggest-headache-isnt-pakistan-but-an-enraged-indian-public-3013078.html

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4 THE ANTECEDENTS OF SOCIAL RIGHTS IN INDIA Neera Chandhoke At first glance India seems to have followed a well-worn script; that of three generations of rights subscribed to by Western theorists. In 1979 the Czech jurist Karel Vasak in an inaugural address to the International Institute of Human Rights in Strasbourg, argued that that political and civil rights belong to the first generation of human rights, social and economic rights fit into the second generation, and solidarity rights that range from the right to a sound environment to culture can be termed as third generation of rights.1 The three generations of rights theory codifies the three components of a clarion call that had stirred and motivated the French people to overthrow a decadent monarchy and a decaying aristocracy in 1789, i.e. liberty, equality and fraternity. Scholars who categorise rights in this mode do not, by any means, reduce a complex historical phenomenon to a simplified stage-like theory of growth. Rights cannot be thought of as sequential; they are overlapping and cumulative. Historically, however, the first set of rights emerged as the dominant motif of political agendas during eighteenth-century bourgeois revolutions. Emphasis on the second set is a product of the socialist revolutions of the twentieth century. The origins of third-generation solidarity rights follow the recognition that individual rights do not help resolve collective issues such as the environment, that in some cases the preconditions for individual rights are collective rights and that cultural communities are valuable because they form the context in which human beings devise and pursue projects. Together the three generations of rights have expanded the concept of what it means to be human. Despite superficial resemblance to the three generations of rights theory, the Indian case proves an exception. For an integrated list of political, civil, social, economic and cultural rights had been systematically conceptualised as early as 1928 in the Motilal Nehru Constitutional Draft. When the time came to codify these comprehensive rights in the constitution of independent India, the list was broken up into two. Thereon, the status of different 83

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rights became asymmetrical insofar as some rights were considered fundamental for human well-being, and others not so fundamental. Whereas political, civil and cultural rights were incorporated into the chapter on fundamental rights and backed by law, social and economic rights were relegated to the chapter of non-justiciable Directive Principles of State Policy. The juridical and political processes by which social aspirations have been transformed into rights in contemporary India in the period between 2004 and 20142 is undoubtedly of great scholarly and political interest. Of equal and perhaps prior interest is the question of why an integrated concept of rights came to be divided into two by the members of the Constituent Assembly. The leaders of the freedom struggle had gauged the pressing needs of Indian society accurately and presciently in the early decades of the twentieth century. But the same leadership, or at least its political descendants, decided to drop social and economic entitlements from its agenda of political priorities at the exact moment when these could have become constitutional entitlements. Why? After all urgent issues of social and economic well-being had not receded. In fact they had acquired even greater relevance given the extreme poverty, illiteracy and ill health that wrecked the lives of millions of Indians at the dawn of independence. What then accounts for the decision not to view social and economic rights as essential preconditions of well-being? This is the political puzzle. The question becomes even more puzzling when we recollect that in 1945 and 1946; that is right up till the first meeting of the Constituent Assembly in December 1946, the country was shaken by overlapping agitations launched by students, workers and peasants. In many cases, strikes and rural uprisings were targeted towards anti-imperialism. In other cases boundaries of anti-imperialist protests were ruptured, and demands for well-being, for redistribution and for justice spilled over the borders of nationalism right into the arena of social rights. Intense agitation by workers and peasants should have attracted political attention, and resulted in an expanded conception of rights. In India these rights were dropped. Why? The reason why the rash of urban discontent and rural uprisings did not come together in a “revolutionary moment” that would have directed India onto the road of not only political but also social and economic democracy is a thought-provoking question, but not one that I wish to pursue here. I want to raise a much more modest question in this chapter: given that social rights were historically a given, and that they were on the agenda of some of the most momentous of struggles on the eve of independence, how is it that the Constituent Assembly dropped social rights, or rather downgraded them to Directive Principles of State Policy, to a series of platitudes, and what some members called pious hopes? Why was rampant discontent and demands for social justice not registered in the 84

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Constituent Assembly? How is it that this particular legacy of the freedom struggle was not given its rightful due when the time came around for an idea to be realised? The question does not seem to have been particularly favoured by legal experts, who scrutinise every word uttered in the Assembly and every term in the Constitution with rapt attention, or by political scientists who have launched many an enquiry into the making of this remarkable constitution. The question needs to be addressed, because even a hesitant answer might well help us understand the dynamics of our collective past. After all these dynamics hang heavy over the malaise of our present; infant mortality, poverty, malnutrition, hunger, illiteracy, avoidable disease and lack of shelter. In this chapter I trace the rise and decline of social and economic rights in India, not in the manner of a historian with a fine eye for detail, but of that of a political theorist who tries to paint history in broad brush strokes when she tries to figure out which were the roads taken and not taken. In the process some aspects of the political puzzle might be resolved. Perhaps.

Making of the Motilal Nehru constitutional draft In the second decade of the twentieth century a group of liberals took on the task of drafting the basic principles of a constitution for India. The exercise in constitution making followed a flurry of widespread discontent over the visit of the Statutory Commission, headed by Sir John Simon, to India in 1927. Though a number of accomplished Indian lawyers and constitutional experts had emerged on the horizon of nationalist politics, Indians simply did not find representation in the commission. The deliberate exclusion of Indians from a body authorised to conceive of the political future of the country deeply riled the leadership of the freedom struggle. In a major show of solidarity all sections of Indian society joined hands to oppose the commission. Its arrival in different parts of the country was met by hostility, anger and black flag demonstrations. It was amid this surge of intense anger that Lord Birkenhead, the then Secretary of State for India, threw a challenge at the leaders of the freedom struggle. He dared them to produce a constitution that would fetch approval across the board. The Secretary of State believed, or so it appears, that no constitution would ever be acceptable to Hindu and the Muslim communities, which by the 1920s were locked into confrontation. The honourable Secretary of State was fated to disappointment. The leaders of the Congress party rose to the challenge and in the Madras session in 1927 decided to draft a constitution in association with other political groups.3 An All-Parties Conference under the chairmanship of Dr M. A. Ansari was set up to supervise the task. On 19 May 1928 the 85

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Conference appointed a committee of nine members with Pandit Motilal Nehru as the chairman. The mandate of the committee was to consider and determine the basic principles of a future constitution, with special reference to the communal problem, and the question of Dominion Status/Responsible Government.4 The committee submitted its report in August 1928 to the All Parties Conference. The Madras Congress had stipulated that the basis of the constitution should be a Declaration of Fundamental Rights. The committee accordingly took care to conceptualise, list and guarantee fundamental rights, which could not be withdrawn at any point of time. Strikingly the committee conceptualised an integrated system of rights that reached across traditional divides in rights talk. When the report was submitted to the All Parties Conference in August 1928, two recommendations aroused a great deal of interest and catapulted energetic discussions, the demand for Dominion Status and minority rights. Whereas the first recommendation aroused criticism because the Congress had begun to think of independence instead of Dominion Status, the second was hailed as a possible resolution of the communal question. In the charged atmosphere of escalating communal disharmony and demands for independence, the declaration of an integrated system of rights was accepted without much ado. It is only in retrospect that we can begin to appreciate the listing of several significant rights in the Nehru Draft. According to Granville Austin these were a close precursor of the rights chapter in the Constitution.5 Paramount among the rights recommended by the committee was adult suffrage for both men and women. According to the Motilal Nehru Report, “any artificial restriction on the right to vote in a democratic constitution is an unwarranted restriction on democracy itself. It is quite a different thing to say that a system of universal adult suffrage is difficult to work. But this difficulty howsoever great has to be faced if what is contemplated is full responsible government in its true sense and with all its implications”.6 The enumeration of rights in the Nehru Draft was inaugurated with the classic right to liberty and privacy. Clause ii stated that “no person shall be deprived of his liberty, nor shall his dwelling or property be entered, sequestered or confiscated, save in accordance with law”.7 The constitutional draft guaranteed freedom of conscience, and the free profession and practice of religion subject to public order or morality. Also granted was the right to free expression of opinion, the right to assemble peaceably and without arms, and the right to form associations or unions for purposes not opposed to public order and morality. All citizens were assured equality before the law and granted equal civic rights.

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Of particular note was the grant of social and economic rights as an integral part of the fundamental rights section. In his report to the president of the All Parties Conference Dr M. A. Ansari, Pandit Motilal Nehru recounted that Sir Malcolm Hailey, the then home member of the government, had asked whether the constitutional structure the commission was seeking to devise could ever rest on solid social and political foundations. “We do not deny that there is much need for social advance”, stated Pandit Motilal Nehru. “Indeed, the need seems to us to be urgent and imperative. We feel, however, that that is an argument for, rather than against, the establishment of responsible government; for we believe that without real political power coming into our hands, a real programme of social reconstruction is out of the question. . . . We cannot believe that a future responsible government can ignore the claims of mass education, or the uplift of the submerged classes, or the social or economic reconstruction of village life in India”.8 Accordingly primacy was given to the right to free elementary education without distinction of caste or creed in the matter of admission to any educational institution, maintained or aided by the state. Such a right, stated the report, shall be enforceable as soon as due arrangements are made by a competent authority. The report obliged a future Parliament to make suitable laws for the maintenance of health and fitness for work for all citizens; for securing a living wage for all workers and for the protection of motherhood, welfare of children and economic consequences of old age, infirmity and unemployment. It granted the right of association in order to maintain and improve labour relations and economic conditions. At first glance the inclusion of social as well as cultural rights in a predominantly liberal constitution appears extraordinary. Classic liberalism focuses on the moral primacy of the individual, on negative rights predominantly on the right to life and liberty, on the rule of law, and on limited government. Social and economic rights reiterate that (a) poverty and illbeing are socially created, (b) that the state has the responsibility of providing the preconditions of well-being and (c) that the right to well-being is an indispensable precondition for the right to life and liberty. The All Parties Conference, which considered the report in the last week of August 1928, suggested the addition of a clause that would direct Parliament to make laws ensuring fair rent, as well as fixity and permanence of tenure to agricultural tenants.9 This clause was added to the list of social rights enumerated in the supplementary report issued by an enlarged committee in September 1928. Interestingly the supplementary report at the same time recognised titles to private and personal property lawfully acquired and enjoyed at the establishment of the Commonwealth.10

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The recommendations in the Report fetched a fair degree of enthusiasm. On 2 September 1928, an editorial in the Hindustan Times titled “Dawning of a New Era” saw the report as heralding “the final death of communal egotism and the birth of a national consciousness in the country. It marks a great advance towards unity and may be considered the final stepping stone towards freedom. . . . Lord Birkenhead once taunted Indians to produce a united constitution. That constitution has been prepared and has received the support and sanction of all those parties who count in Indian politics. . . . We have drawn the Magna Charta of our liberty. We must now organise popular sanction behind it, and make our demand so irresistible . . . to force Parliament to bow to our wishes”.11 The Amrita Bazaar Patrika was one of the few newspapers that paid attention to the grant of social rights. On 2 September an editorial stridently criticised the addition of clause initiated by Pandit Madan Mohan Malviya: that an independent government shall not confiscate lawfully acquired private property. According to the editorial Jawaharlal Nehru had strenuously opposed this completely anti-socialist motion at the Lucknow meeting. His father, Motilal Nehru, rising to confront the arguments of his son, suggested that there was no use putting the patch of socialism on the report. “Quite right; but why put the patch of capitalism either?” rhetorically asked the editorial. The resolution, it continued, added the provision that the Indian Parliament should make laws to ensure fair, fixed and permanent rent to agricultural tenants. This does not come within the Declaration of Rights, it was pointed out, because no right has been declared in it. On the other hand it smacks of patronising the poor.12 The list of social rights elaborated in the 1928 report were reiterated in the “Resolution on Fundamental Rights and Economic and Social Change” adopted by the Congress session in Karachi in March 1931. The resolution, writes Austin, was both a declaration of rights and a humanitarian socialist manifesto.13 The Karachi Resolution rather touchingly stated that “in order to end the exploitation of the masses, political freedom must include the real economic freedom of the starving millions”. The state was expected to safeguard the interests of industrial workers, ensure a living wage, healthy conditions of work, limited hours of labour and protection from the economic consequences of old age, sickness and unemployment. Women were given protection along with children, and special benefits were extended to them. The state was to own or control key industries and services, mineral resources, railways, waterways, shipping and other means of public transport. Reform of systems of land tenure, rent and revenue was called for. At the end of 1945, the Sapru Report reiterated the importance of rights, and emphasised the rights of minorities. 88

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The legacy of the freedom struggle on the issue of social rights was mixed, with the highly individualist right to private property co-existing with social and economic rights that demand a modicum of redistribution. Some rights such as the right to freedom of religion were individualist, and others such as the right of minority communities to their own educational institutions were collective. Above all the insertion of the clause that Parliament shall make suitable laws for ensuring well-being conceivably paved the way for making social rights as matter for state policy. That is instead of rights creating the constitutional framework for a state, and imposing limits as well as obligations on it, the state was given the responsibility of drafting these rights. On the eve of the meeting of the Constituent Assembly, the Congress appointed an Experts Committee to draft fundamental rights with Jawaharlal Nehru as the chairman. The committee met in July and August 1946.

At the Constituent Assembly The Constituent Assembly began the work of detailing a new constitution for independent India in December 1946 in the shadow of impending independence, and the by now certain partition of the country. The Objectives Resolution, and the discussion around the resolution, generated strong hopes that social rights would form an intrinsic part of the fundamental rights chapter. This is what the Objectives Resolution portended. In any case, there was no reason why this could not be done. Granville Austin suggests that though the ideological orientation of the members in the Constituent Assembly ranged from Marxists to Gandhian socialists to conservative capitalists, each of whom had his own definition of socialism, “nearly everyone in the Assembly was Fabian and Laski-ite enough to believe that . . . ‘democratic constitutions are . . . inseparably associated with the drive towards economic equality’ ”.14 These factors should have assured the incorporation of rights to social and economic goods as constitutional entitlements. The expectations aroused by the Objectives Resolution were majorly disproved when the advisory committee on fundamental rights (appointed by the resolution of the Assembly on 24 January 1947) met to consider the question of fixing fundamental rights. The advisory committee came to the conclusion that the rights should be divided into two parts, the first justiciable and the second non-justiciable. The decision is frankly inexplicable. Every factor to further the codification of social rights as constitutional entitlements had been set in place: historical legacies and political commitments, demands for redistributive justice from some very radical workers and peasant agitations, and the 89

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composition of the Constituent Assembly. Yet the status of social rights was reduced to mere directives that a future government may or may not heed. And the enactment of social rights was made contingent on the political will of successive governments of independent India.15 How do we understand this demotion of rights that are essential preconditions of the right to life and liberty? The proceedings of the Constituent Assembly can be read in at least two ways. We can read them as a text, as a series of overlapping declarations, perorations, criticisms, arguments and counter-arguments. In other words, we can read the proceedings as contestations on the blueprint that was being drafted for the political, the social and the economic life of the collective. We could also refer chapter and verse to the dismayed reaction of many members when they were confronted by the demotion of social and economic rights, and defences of this demotion. So we can conclude that the debates in the Assembly followed the wellworn argument in circles of political philosophy and legal jurisprudence that political and civil rights are fundamental because they are justiciable. And they are justiciable because they place negative obligations on agents that are in a position to affect these rights. For example the right of a citizen not to be tortured is a negative right insofar the state is obliged not to subject the citizen to cruel or inhuman treatment. The right of a citizen to basic health care, it has been argued since the concept of social rights was discovered, is infinitely difficult to enforce. For one, the necessary precondition of social rights is the redistribution of resources and progressive taxation, which may not be to the taste of many holders of state power and their backers. Two, the state may or may not have the resources to establish necessary institutions that provide health care or medicines to people. Finally, the judiciary does not possess the competence to pronounce on these matters. Social rights are best thought of aspirations; to be firmly kept in mind when the state decides on policy. In the advisory committee, and in the Constituent Assembly, discussions were centred on the vexatious question of whether positive rights could be enforced. This consensus was negative. Resultantly one of the earliest rights to be articulated by the freedom struggle – the right to free education – was taken out of the fundamental rights chapter, reduced to an aspirational right, and made part of the Directive Principles of State Policy. In the Constituent Assembly on 4 November 1948, Dr B. R. Ambedkar admitted that Directive Principles have no legal force behind them. “I am prepared to admit it. But I am not prepared to admit that they have no sort of binding force at all. Nor am I prepared to concede that they are useless because they have no binding force in law . . . whoever captures power will not be free to do what he likes with it. In the exercise of it, he will have to 90

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respect these instruments of instructions which are called Directive Principles. He cannot ignore them. He may not have to answer for their breach in a Court of Law. But he will certainly have to answer for them before the electorate at election time”.16 There could be no better articulation of good intentions. Except that in the hard world of politics, where trade-offs between different goods are a rule rather than an exception, good intentions generally come to nothing, even if they do not precisely pave the way to hell. Social rights accordingly became a project for the future, a project vastly dependent on the political will of elected governments. “If”, stated Shri M. V. Kamath optimistically, “the provisions in these articles are going to be seriously implemented and Government will really and in earnest take action in accordance with the provisions of these articles, I have no doubt that they will provide a new charter, the charter of new life for the exploited, the disinherited, and the under-privileged, and they will provide the basis or the framework for the blue-print of economic and social democracy in our country”.17 Note the big “if” that Kamath began his oration with. If only the Congress had proved faithful to its own commitment to provide a better world for the citizens of independent India, if only it had listened to the voices of the peasants and the workers who demanded redistributive justice, and if only it had decided to effect a merger of the national and the social, the history of India might have been different. But then history is littered with these nostalgic “ifs”, often dismissed by empiricists as counter-factual history, so let us put wistfulness aside and try to sort out the puzzle. In the 1920s under the inspired leadership of Gandhi, the Congress in a bid to reinvent its political profile began to reach out to various sections of society on the dual agenda of political independence and social well-being. As independence approached, the pursuit of these two goals wandered into different paths. The two objectives were simply detached. As the possibility of independence appeared as a tangible possibility, different groups set about, with an enormous amount of energy, to secure their own projects. For some this project was about getting their own homeland, for some assurances of the status that their caste or their community would have in post-independence India and for others the prospect of a better life free of the debilitating constraints of ill-being. The partition of the country secured the first of these projects, but marginalised many others. Communal riots, mass rapes, killings and genocide in Punjab and Bengal; the spectre of endless processions of dispossessed and bedraggled refugees; dislocations and tragedies catapulted an urgent task onto the cluttered plate of the leadership, that of keeping the nation together. Even as energies and imaginations were harnessed to the task of 91

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preventing further breakups, of consolidating the country, of reassuring the Muslim minority that its rightful place in the country would be respected, the project of securing well-being for the ordinary individual was pushed into the undefinable future. This is not to suggest that the Indian state has done nothing to resolve the vexatious problems of poverty, ill-health, malnutrition, hunger and starvation, illiteracy and unemployment. The significant point is that citizens do not have a right not to be poor, or till recently the right not to be illiterate, or the right not to be malnourished. Rights are significant for political vocabularies because they impose corresponding obligations on the state. It was precisely this aspect that went missing in the Constitution. The project of a possible social transformation was hijacked by political developments.

The Constituent Assembly: the political context Historians have expended an enormous amount of intellectual energy on the details of the years that preceded independence and the partition of the country. Most of the literature that has been produced focuses on the intricate negotiations between the British Government and the Indian leadership, processes that led to the partition, and the horrors that lay in wait when partition finally happened. Comparatively less attention has been paid to the other strand of India’s history in 1945 and 1946, i.e. student and worker strikes in urban areas, and demands for redistributive justice in peasant uprisings especially in Tebhaga and Telangana. Little attention has been paid to the cumulative impact of these struggles for a post-independence India. And even less attention has been paid to the fact that our collective history did offer us another road to the future, a road that Congress leadership simply did not consider worthy of note Sucheta Mahajan suggests that contemporary perceptions and radical scholarship, she has Sumit Sarkar and Gautam Chattopadhyay in mind, have infused these historical events with more than symbolic significance. The unity that was forged, she argues, was more at the level of organisations, rather than at the level of the people, organisations came together for only a few days and unity fragmented shortly thereafter. “The notion that these violent upsurges posed a threat to the Congress, either in terms of its position at the head of the nationalist forces being challenged by other more radical parties, or in terms of its strategy of struggle being replaced by an alternative, more ‘revolutionary’ strategy are even less sustainable”. These isolated struggles were not integrated into a sustained movement that could provide an alternate. In any case, she suggests dismissively, political

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discontent was an extension of earlier nationalist activity with which the Congress was integrally associated.18 Mahajan correctly points to the short-lived character of these and other incidents, to the ephemeral nature of the unity that was forged, and to the failure to integrate these upsurges into wider political movement. What she does overlook is that neglect of these protests foreclosed the sense of political possibilities that our collective history had to offer. “The sense of openness, the existence, or at least the deeply-felt perception once of alternative possibilities, gets marginalised or forgotten”, writes Sarkar. If we were to pay attention to these uprisings, he suggests, they would “convey to us a sense of deeply felt and fought for alternatives that came to be submerged and largely forgotten”.19 Sarkar speaks as a historian of “submerged” and neglected histories. My concern, as a political theorist, is with another, but arguably a related, question. How is it that political unrest and demands for redistributive justice, right up to the eve of the first meeting of the Constituent Assembly, did not impact the deliberations of the Assembly? The making of a constitution is not an isolated event; the process is abstracted neither from history nor from the political context. Constitutions are a register of both history and the political aspirations of the age. Consider that the Assembly met in the shadow of extraordinarily turbulent and unprecedented student, worker and peasant uprisings. According to Sarkar massive unrest in the country peaked in July, August and September 1946, after which communal riots took over and disrupted labour unity in the big cities. Despite the capture of one agenda by another, the significance of the strike moment cannot be underestimated. Strikes attracted massive support from across the country, and went beyond the traditional textile base of trade unionism to miners, to railwaymen, to white-collar employees in post offices, to banks, to military establishments and to the police. For example the general strike in support of postmen in Calcutta on 29 July 1946 fetched massive support. The strike has attained legendary status, counter-posed as it was to the communal events of 16 August 1946. Most of these strikes were led and directed by the Communist Party of India: the railway strikes in July and September 1946, the postal strike from July to August of the same year; police agitation in Delhi, United Provinces, Bihar, Bengal and Madras; and strikes of Imperial Bank employees and military establishment clerks. Very often strikes were prolonged, bloody, bitter affairs like the South Indian railway strike at Golden Rock Tiruchirappalli, and the Amalner textile strike in Bombay province in S ­ eptember–October that was brutally repressed.20

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The demands of the workers were clear: the post-independence state should commit to redistributive justice. Seven months before the Constituent Assembly met, on May Day 1946 in Gauhati, copies of resolution adopted by the Gauhati Branch of the Bengal and Assam Railroad Workers Union were forwarded to the General Secretary of the All India Trade Union Congress, Gauhati.21 The resolution reiterated faith in the concept of a socialist state, which alone, it was stated, can ensure the real well-being of the people by utilising fully all the resources of the country solely for the purpose of equitable distribution, and for the benefit of the community. The resolution, expressing optimism that the constitution for a free India will foreground this basic principle, urged the central and the provisional government to take cognizance of the need to ensure social security to labour. It was further suggested that the constitution should ensure adequate provisions for distress caused by disabilities of low wages, sickness, unemployment and old age. It called upon workers engaged in all trades, occupation and industries to carry on a persistent and unremitting agitation for the purpose of securing the above, by sound organisation and appropriate trade union action. There could no clearer endorsement of the social rights clauses of the Nehru Report. Yet it was precisely this report and, by implication, its endorsement that were laid aside by the Assembly. That the members of the Constituent Assembly simply did not register the political moment of upheaval and discontent, or indeed the articulation of aspirations and expectations by the workers and the peasants to whose well-being the Congress had committed time and again, puzzles. Colonial authorities were more than aware of the seething discontent that over-spilled the minds of students, the workers and the peasants. Did the Congress not discern deep rooted unrest? On 1 December 1945, General Sir Claude Auchinleck – the commander in chief of the armed forces in India-in a top-secret report to the British cabinet warned of “a well-organised revolution next spring and the possibility of a serious but less well-organised rising at any time during the coming winter . . . when trouble comes, it may be on a greater scale than in August 1942. The principal danger areas are likely to lie in U.P., Bihar and Bengal”.22 The revolt would start in the cities, affect the labouring population and the students, spread to rural areas, and also impact members of the Indian armed forces. The report was despatched a week after a serious popular student uprising in Calcutta on 21 and 22 November 1945 against the trial of the Indian National Army. Gautam Chattopadhya, a participant in the uprising, tells us that the Students’ Congress, and the Congress Socialist Party-Revolutionary Socialist Party–led Student Federation, had given a call for a general strike and for a march to Dalhousie Square – a prohibited area – on 21 94

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November 1945. Armed with the tricolour and the Student’s Federation Flag, singing revolutionary songs and raising “Quit India” slogans, students began to march towards the Square, but their path was blocked by armed police on horseback. Undeterred by the menacing body of armed police, more and more students poured into the meeting. Despite warnings the gathering refused to disperse. In the evening the police opened fire, injuring and killing a number of students. As soon as news of the killings spread, the red flag–led Transport Workers’ Union gave a call for a general strike. Buses, rickshaws and trams stopped plying in Calcutta. Life in Calcutta was brought to a standstill on 22 November 1945. From Kankinara in the northern suburbs to Budge Budge in the south, lakhs of industrial workers in and around Calcutta went on a complete general strike, barricades were erected in slum areas and roadblocks set up across the city. Ideological divisions among students took a back seat, as students belonging to various political parties marched unitedly to the cry – “death to British Imperialism”. A huge procession of Muslim students carrying the Muslim League flag joined in. In an unprecedented act of solidarity the Muslim League flag was tied to the Tricolour and slogans of Hindu–Muslim unity rent the air.23 A little later, a procession of factory workers joined the demonstration and now the red flag was joined to the other two flags. “From then on, the unity of the three flags became the symbol, not of the unity of these three parties, but of the revolutionary unity in action of the entire Indian people. Four months later, the Royal Indian Navy rebels would tear down the Union Jack and fly instead the three flags of the Congress, the League and the Communists”.24 A nationalist agitation over the sentencing of political prisoners, and for restoration of civil liberties, was transformed in the course of the struggle into a movement for unity between various segments of the freedom struggle, and between these segments and communism. This was the political miracle. The same theme – that privileging of identities need not be the sole way we practice politics – was powerfully articulated in the 1973 film Garam Hawa directed by M. S. Sathyu. The film, based on an unpublished short story by Ismat Chugtai, narrated poignantly the predicament of Muslims who chose to stay on in India after partition. Salim Mirza, played by the gifted actor Balraj Sahni, decides not to migrate to Pakistan, even though his family members leave him one by one. Over time personal and political problems weaken his resolve, and he sets out for the railway station in a tonga accompanied by his son played by Faroukh Sheikh. The tonga passes a red flag procession calling for unity among the dispossessed. Symbolically the procession is headed in the opposite direction to that of the 95

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railway station, the embarkation point for the migration to Pakistan. Wisdom dawns, Salim Mirza stops the horse-drawn carriage, climbs down, sets his cap straight, and joins the procession. He realises that there is another, and perhaps a more fulfilling, route to dignity, than that of religious-based identities that have no room for other faiths, for tolerance, for unity or for radicalism.

Yet another strand of history The chapter began with two overlapping questions: one, why did the Constituent Assembly demote social rights, which had formed an integral part of earlier Declarations of Rights, by the Congress? More specifically, why did the context of political unrest in the months before the meeting of the Constituent Assembly not impress itself on the collective consciousness of the distinguished members? In countries that witness mass movements for freedom, constitutions are historically fashioned documents. They express the aspirations of the age, and are a social pact for the future. The text of the constitution cannot be read in abstraction from the political, the social and the economic context. India had witnessed one of the major mobilisations in history, which had invited people into history. The party that dominated the struggle was committed to democracy. And yet neither the biography of social rights nor demands for justice in the present imprinted itself on the deliberations of the Constituent Assembly, when members spoke of the impossibility of enforcing social rights. This seems inexplicable. But then histories are plural, and the freedom struggle was comprised of a number of parallel, interlocking and contradictory strands. Of these, two stand out as influential: identity politics that culminated in the demand for an independent Pakistan, and social and economic struggles for wellbeing, redistribution and justice. As a historically fashioned document, the Constitution bears the trace of identity struggles that marked the passage to the partition of India. Despite the fact that the country had been partitioned on lines of religion, and despite demands that the issue of minority rights should be suspended, the Constituent Assembly decided to retain the rights of minorities to their language, script, culture and educational institutions. These rights were preceded by the grant of the generic right to freedom of religion.25 History bears witness to the political sagacity of the leadership. Despite the partition of the country, the leadership remained committed that the future of the Muslim community was safe in the country even if it was in a minority. The insight that both majorities and minorities require access to basic social goods, food shelter, health, education and a living wage as 96

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a matter of right, before they can do anything else at all, seems to have eluded the leadership. The partition culminated in the success of identity politics, and the country was partitioned in the name of religion. This particular strand of history bears a long shadow. Till today, people snared in the politics of identity mobilise to demand collective benefits from the state. The harnessing of political energies to identity politics has borne results insofar as devalued identities have been revalued. The irony is that identity politics has simply not been accompanied by the harnessing of similar energies to the project of social transformation. This is the road that the country has taken. The hold of identity politics on the collective imagination has pulverised the politics of class. But the taking of another road that could lead to justice, social, economic and political was ruled out by yet another strand of our collective history. There is something more to this story of the demotion of social rights than contingency, or the hijacking of the social transformation agenda by the dynamics of the partition moment. This something “more” had to do with the nature of the Congress leadership, and of the party. It had to do with the attitude that the leadership exhibited towards struggles led by non-Congress leaderships, particularly by the Communist Party and the socialists. It is well known that the power of the Congress party, which dominated the freedom movement, as it did the politics of independent India right up to 1977, rested upon a coalition that leaders had forged between various groups and interests in the 1920s. These “big men” included large landowners but also the middle peasants, industrialists but also the professional classes, castes and religious communities, women organisations and the youth, workers and peasants. This network of big men, who exerted both material and symbolic power, mediated relationship between the Congress leaders and various interest groups. Reliance upon the network enabled the High Command of the party to not only arbitrate clashes of interests between its various constituents but also control popular upsurges that had been launched under its aegis. Historians have borne this out in many a study of the Congress. As the leaders of the Congress turned to new regions and localities within the subcontinent, wrote Ravinder Kumar, they turned to dominant men and powerful social groups everywhere and utilised their power, their influence and their commitment to nationalism to recruit new social classes and broaden the base of the struggle. However this mode of recruitment through the mediations of dominant interests posed serious problems pertaining to relations between the propertied and the non-propertied. The initiative lay with those who possessed substantial wealth and controlled 97

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the levers of power in society, By the 1930s upper- and middle-class interests had crystallised within the movement in a “manner which ensured that the lowly classes, urban and rural, participated in nationalist agitations only under the hegemony of the propertied classes”.26 In sum, two features of the Congress system stand out as politically significant. One, struggles initiated by the leadership, were controlled and contained by the coalition of influential interests within the party. Two, the Congress leadership was supremely uncomfortable, if not completely dismissive, about popular struggles led by non-Congress organisations. Chattopadhyay tell us that during student and worker uprising in Calcutta in 1945 and 1946, the Congress leadership not only stayed away but also issued condemnatory strictures. In November 1945, students belonging to the youth wing of the party expected leaders such as Sarat Chandra Bose and Kiran Shankar Roy to participate in the struggle. But both couriered letters calling on the students to disperse, and not be “misled into adventurist actions, instigated by the Communists”.27 On the night of 21 November, when students were injured and killed in police firing, Sarat Chandra Bose, the elder brother of Subhas Bose, condemned the uprising as “reckless and adventurist”, opposed the call for a working-class general strike and characterised the entire incident as a communist conspiracy. The then Congress president Maulana Abdul Kalam Azad told the press that the present policy of the Congress was to “maintain peaceful, undisturbed conditions in the country and to fight the elections”.28 The implications were clear; no political discontent that might derail negotiated settlements leading to a transfer of power was to be tolerated. That the Congress did not hesitate to subvert any political agenda not within its control has been reinforced by the research findings of Gyanendra Pandey. In his study of the rural base of the Congress in the United Provinces 1920–40, Pandey suggests that if the Congress was responsible for instigating peasant protest, it was equally responsible for holding it down.29 Peasant upsurges were relatively low in regions dominated by the Congress. The sceptical, if not outright hostile, attitude of the Congress leadership to sustained agitations in the years that led to independence was ably summed up in a note written by the Viceroy Lord Wavell to the Secretary of State for India in November 1945. “There have recently been indications that the Congress leaders want to reduce the political tension. . . . There is the strong capitalist element behind the Congress which is becoming nervous about the security of its property”. A month later the Commander in Chief General Auchinleck wrote to his Chiefs of Staff that the Congress shows signs of realising that any serious deterioration in the discipline and obedience to authority of the Indian Armed Forces would not 98

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be in their own interest, should they assume power, and that it would be better to try first to gain this power by constitutional means, rather than by insurrection”.30 In short, once a movement that once sought to subvert colonial power, the Congress now aspiring to the same sort of power had no room for further subversions. The party set out to become the arbiter of India’s destiny, and tolerated no attempt to erode this particular project. In April 1946 a Congress ministry repressed the sweeper’s strike in Bombay, and Congress volunteers officiated as policemen during a police strike in Patna. Sardar Patel denounced the “mutiny” of RIN ratings, Gandhi echoed this disapproval and Jawaharlal Nehru fell in line.31 Equally consider the case of the strike of the postal service in July 1946. Postal services were dislocated completely in Bombay and Delhi and other provinces were affected. According to the Hindustan Times of 12 July 1946, in a press statement Jawaharlal Nehru urged the government and the postal union to accept full adjudication or arbitration of the entire dispute. “In labour disputes generally, and more particularly in regard to essential services, a civilised Government and society provide other methods of settlement than that of the strike”.32 This comment from a man who swore by socialism sounds strange, except in the context of the ambition of the Congress to monopolise the political space in which the script of Indian politics was being played out. Gandhi’s advice to striking postmen reinforced this attitude. “One hears of strikes all over the country to paralyse the Government. This paralysis is an extreme political step, open only to a body like the Congress, not even to unions, however powerful they may be. If the Congress is the People’s arm par excellence for the purpose of winning independence, paralysing action should be retained solely in the hands of the Congress”. The Congress, he said, is engaged in the task of setting up a constituent assembly and it is important not to hinder it now.33 Dua’s analysis of the Congress system from 1947 onwards can easily be refracted backward. Although the Nehruvian framework of consensus was very broad, argued Dua, and allowed for a liberal accommodation of political dissent, definite boundaries to this accommodation had been put in place. Nehru accepted opposition as long as it was diffused and articulated within the orbit of the Congress system. The inherent composite character of the Congress was preserved by the accommodation of diverse social interests, and through a continuous search for dynamic equilibrium in the midst of internal competition among shifting political coalitions within the party. But Nehru also believed that the Congress was the agent of destiny and the sole guardian of public interest.34 Intent on undercutting other agents, the Congress was dismissive of any agenda that had not originated 99

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in the Congress itself. Accordingly the downgrading of social rights in the Constituent Assembly, despite the earlier commitment of Congress leaders, and despite the atmosphere of simmering discontent among the workers and the peasants, clearly represented a case of elite containment. Social rights were fine if they had been granted by Congress leaders, but if the party decided to drop them when the time came for this idea, so be it. This was ordained by the leadership. In sum, the leadership chose national unity and a constitutionally negotiated transfer of power, over a socially transformative agenda, and closed its ears to demands for redistributive justice.

Conclusion In the first decade of the twenty-first century, Parliament under the UPA led by the Congress set out to enact a series of social legislations in response to civil society campaigns and interventions by the Supreme Court. Interestingly most campaigns for the delivery of social goods have either originated from a Supreme Court decision or succeeded in their objectives when the Court has intervened on their behalf. Though Court interventions have helped campaigns to achieve their goals, the need for the Court to intervene at all illustrates the paradox of the state and citizen activism. The Indian State has proved more responsive to Court injunctions rather than popular representations, compelling more and more groups to invoke judicial activism. In part, the Court has adopted a proactive stance because the agenda of contemporary civil society mobilisation is self-limiting. Social movements that demand a radical restructuring of power relations in the country have just not fetched the required response from the judiciary. This is most evident in the contemporary moment when the BJP government at the centre has announced plans for social security but as policy, not as a measure to grant access to goods citizens in India have a right to. The antecedents of this deeply disillusioning moment lie in history. In the Constituent Assembly, the Congress leadership reneged on its own commitment to an integrated conceptualisation of rights, even though the political background against which the assembly began its deliberations reinforced and strengthened the demand for social rights. Perceiving itself as the arbiter of India’s destiny the Congress leadership reneged on its own commitments, and simply ignored sustained demands that the uprisings had catapulted to the forefront. The jettisoning of the social rights agenda bred a bitter harvest. For in post-independence India ill-being continues to wrack the lives of millions of people.

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Notes 1 Carl Wellman, “Solidarity, the Individual, and Human Rights”, Human Rights Quarterly, 22:3 (August 2000), 639–657, 639. 2 This is the period when the coalition United Progressive Alliance led by the Congress party ruled at the centre. 3 On the history of rights in India see Niraja Gopal Jayal, Citizenship and Its Discontents: An Indian History (Cambridge, MA: Harvard University Press, 2013), p. 137. 4 The other members were Sir Tej Bahadur Sapru, Sir Ali Imam, Shri Pradhan, Shri Shuaib Quereshi, Shri Subhas Chandra Bose, Shri Madhao Shrihari Aney, Shri M. R. Jayakar, Shri N. M. Joshi and Sardar Mangal Singh. 5 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford: Clarendon Press, 1966), p. 55. 6 Ravinder Kumar and Hari Dev Sharma (eds.), The Nehru Report, Selected Works of Motilal Nehru, Volume 6, published under the auspices of the Nehru Memorial Museum and Library (New Delhi: Vikas, 1995), p. 69. 7 Ibid., p. 75. 8 Ibid., p. 13. 9 Motilal Nehru Papers, vol. 6, p. 129. 10 Ibid., p. 152. 11 Ibid., p. 306. 12 Ibid., p. 310. 13 Austin, op. cit., p. 56. 14 Ibid., p. 41. 15 For an informed discussion of the debates in the assembly see Jayal, op. cit., pp. 145–158. 16 Constituent Assembly Debates, 1989 Official Report, vol. VII, 4 November 1948 to 8 January 1949, Second Reprint (New Delhi: Lok Sabha Secretariat, New Delhi), p. 41. 17 Ibid., p. 533. 18 Sucheta Mahajan, Independence and Partition: The Erosion of Colonial Power in India (New Delhi: Sage, 2000), p. 101. 19 Sumit Sarkar, “Editors Introduction”, in Sumir Sarkar (ed.), Towards Freedom: Documents on the Movement for Independence in India 1946, vol. 1, Indian Council of Historical Research (New Delhi: Oxford University Press, 2007), pp. xiii–xxix, xiv. 20 Ibid., p. 234. 21 Ibid., p. 461. 22 Gautam Chattopadhyay, “Bengal Students in Revolt Against the Raj”, in Amit Kumar Gupta (ed.), Myth and Reality: The Struggle for Freedom in India, 1945–47, issued under the auspices of Nehru Memorial Museum and Library (New Delhi: Manohar, 1987), pp. 152–171, 153. 23 Ibid., p. 156. 24 Ibid., pp. 156–157. 25 I have discussed this issue in some detail in my Beyond Secularism: The Rights of Religious Minorities (New Delhi: Oxford University Press, 1999), pp. 56–64.

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26 Ravinder Kumar, “Introduction”, in Amit Kumar Gupta (ed.), Myth and Reality: The Struggle for Freedom in India, 1945–47, issued under the auspices of Nehru Memorial Museum and Library (New Delhi: Manohar, 1987), pp. xiii–xxiii, xxiv–xxv. 27 Chattopadhyay, op. cit., p. 155. 28 Ibid., p. 157. 29 Gyanendra Pandey, “A Rural Base for Congress: The United Provinces 1920– 1940”, in D.A Low (ed.), Congress and the Raj: Facets of the Indian Struggle 1917–47 (London: Arnold Heinemann, 1997), pp. 199–224, 200, 214. 30 Chattopadhya, op. cit., p. 158. 31 Towards Freedom 1946, vol. 1, p. xx. 32 Towards Freedom 1946, vol. 1, p. 488. 33 Ibid., p. 517. 34 Bhagwan D. Dua, “Congress Dominance Revisited”, in Paul R. Brass and Francis Robinson (eds.), The Indian National Congress and Indian Society 1885–1985 (Delhi: Chanakya Publications, 1987), pp. 349–372, 357.

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5 THE CONSERVATIVE CONSTITUTION Freedom of speech and the Constituent Assembly Debates Gautam Bhatia

The framing of India’s Constitution is popularly considered to be a transformative moment: the culmination of a decades-long movement for political and economic self-determination, and the marker of a transition from a colonial regime maintained by coercion to a democratic republic. The crowning glory of the constitution-making process, which reflects this transformation, is Part III: the fundamental rights chapter. Guaranteeing core civil and political rights such as the right to freedom of speech and expression, life and personal liberty, and equality before law, Part III of the Constitution appears to place the autonomous, self-determining individual at the heart of the Constitutional order. Nonetheless, the rights guaranteed by Part III are not absolute. They are subject, in many cases, to “reasonable restrictions”. Over the course of its history, the Supreme Court has tended to interpret these clauses in a way that the restriction has often swallowed up the right, and the state has been allowed a more or less free reign to pass rights-infringing statutes, or take rights-infringing executive acts. The question then must be asked: is the Court’s civil rights jurisprudence consistent with the character of the Constitution? In this chapter, I will argue that it is: for the reason that, contrary to popular perception, Part III was not actually intended to be transformative in the classical sense of creating a set of rights to serve as a bulwark in service of liberal individualism. By examining the Constituent Assembly Debates around the framing of the free speech clause, and placing it in both its historical context of colonial free speech law and the future trajectory of the Supreme Court’s jurisprudence, I will attempt to demonstrate that as far as the nature and structure of fundamental rights are concerned the framing is better understood as 103

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conservative, than a transformative moment; and that, consequently, the Supreme Court’s conservative approach to freedom of speech is more, rather than less, consistent with the intent of the framers.

I Sixty years ago, at the dawn of Indian constitutionalism, a young Supreme Court was faced with an old legal question: was the state permitted to arbitrarily expropriate a person’s property, and then claim immunity from judicial intervention under the ancient “Act of State” doctrine?1 Justice Vivian Bose held that under the new Constitution, with its fundamental rights chapter guaranteeing the right to property, the state’s claim was no longer valid. With the framing of the Constitution, he observed, “at one moment of time the new order was born with its new allegiance springing from the same source for all, grounded on the same basis: the sovereign will of the peoples of India with no class, no caste, no race, no creed, no distinction, no reservation”.2 In Justice Bose’s view, the Constitution was fundamentally transformative in character. Its framing was a historical moment that inaugurated a new legal and social order, and marked a decisive break with the old. Laws, doctrines and philosophies of ancient vintage could no longer claim the sanctification of time as a reason for their continuing legitimacy. It would have to be shown that they remained consistent with the “new order”. If they were not, they would have to be discarded. What was the nature of the transformation that the Constitution had brought about? Two elements appear in Justice Bose’s formulation: popular sovereignty, and non-discrimination on the basis social markers such as class, caste, race and creed. Another element appears in a case decided by the Punjab High Court, a few years before. In Tara Singh Gopi Chand v. State,3 the crime of sedition – i.e. spreading “disaffection” against the state – an old favourite of the erstwhile colonial government – was held to violate the constitutional guarantee of the freedom of speech and expression. Weston J. crisply observed that “India is now a sovereign democratic State. Governments may go and be caused to go without the foundations of the State being impaired. A law of sedition thought necessary during a period of foreign rule has become inappropriate by the very nature of the change which has come about”.4 Politically autonomous citizens, creations of the new Constitution, were entitled to forms of dissent that they hadn’t been earlier, when they were only subjects. The Supreme Court, however, disagreed with this particular understanding of the transformative character of the Indian Constitution. In Kedar Nath Singh v. State of Bihar,5 it upheld the constitutionality of sedition, 104

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noting that “every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder”.6 To get around the problem that Section 124A of the Indian Penal Code, which defined sedition, made no mention of disrupting the state or public order, and instead expressly criminalised “disaffection”, the Court relied upon the dissenting opinion of Justice Fazl Ali in Brij Bhushan v. State of Delhi,7 which was one of the first free speech cases that it had decided. In Brij Bhushan, the majority had held that a law authorising pre-censorship of books and journals “in the interests of public order”8 was unconstitutional, because the then-constitutional text only permitted restrictions in the interests of the security of the state. Justice Fazl Ali’s dissenting opinion equated “the security of the State”, “public order” and “sedition”, holding that the framers of the Constitution had elected to use a single, compendious phrase to refer to all these concepts. His judgement, in turn, relied upon Justice Maurice Gwyer’s opinion for the pre-independence Federal Court,9 in which the crime of sedition had been linked with its tendency to create public disorder. The Kedar Nath Singh judgement, therefore, invoked a continuous line of precedent that reached back into pre-constitutional days, incorporated the framing of the Constitution as part of that continuity and ended by upholding the constitutionality of a speech-restricting penal provision that itself had been framed in colonial times, and extensively been used against the nationalist movement.10 After all, as the Court held, sedition was a weapon needed by “every State, whatever its form of government”. In this sense, at least, the Constitution transformed nothing. Three years later, in deciding upon the constitutionality of obscenity laws, the significance of the Constitution as a (potentially) transformative moment did not even find a passing reference in the Court’s judgement. In Ranjit Udeshi v. State of Maharashtra,11 not only did the Court uphold obscenity laws, but it also elected to continue with the pre-independence common law definition of obscenity that had its roots in the Victorian era (the Hicklin test).12 And five years after that, in K. A. Abbas v. Union of India, the Court upheld a regime of film censorship set up by the Cinematograph Act of 1952 which, in form and content, largely mimicked its extinct colonial counterpart.13 These three examples are part of a broader, almost uniform, trend. In the sixty-five years of its existence, the Supreme Court has struck down exactly one speech-restricting colonial legislation,14 while upholding pre-censorship of the press,15 the blasphemy law,16 the sedition law,17 the obscenity law18 and the executive’s power to prohibit assemblies19 and ban books.20 105

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Its rhetoric – as we have seen earlier, and will see again – has mirrored colonial justificatory discourses predicated upon tutelage, the non-autonomous subject and the maintenance of social order. In this context, Justice Vivian Bose’s vision of the Constitution as a transformative charter of selfdetermination and freedom seems little more than empty rhetoric, judicial legerdemain. But sixty-five years after the Constitution came into force, with little sign of change in the Court’s free speech jurisprudence, it is perhaps time to re-examine the moment of the framing itself, and look for some answers. I will argue that the contradictory impulses of continuity and of transformation were in an uneasy tension with each other throughout the Constituent Assembly Debates. The rhetorical power of Justice Bose’s “new order” competed with the overriding desire to consolidate the hard-won nation; a long-standing distrust of expansive political authority against the individual was sought to be tempered by invoking a change in the nature of authority from foreign to local; the attractive vision of the autonomous citizen was diluted with the lingering suspicion that India needed, for a while, to remain in the waiting room of history,21 not quite ready for the freedom that it had just earned for itself. The final text of Article 19(2) was an unhappy attempt at reconciliation and, as the intervening years have proved, ended up reconciling nothing. Ultimately, the Supreme Court’s interpretations have replicated the contradictions of the framing. It would be simplistic, of course, to contend that there is a direct, causal connection between the contradictory intentions of the framers, and the contradictory nature of our free speech jurisprudence. What I would argue, however, is that a complete analysis of the pathologies of Indian free speech law depends upon careful engagement with the events of the framing. The Supreme Court has only interpreted the text that the framers gave to us. A first step towards a deeper understanding of what has happened over the last sixty-five years might begin, therefore, with an understanding of what went into the framing of the constitutional text.

II On the 4th of November 1948, at the end of a day that had been full of long and often bitter procedural wrangles, the president of the Constituent Assembly finally called upon Dr B. R. Ambedkar to introduce the Draft Constitution of India.22 Ambedkar’s speech marked the culmination of not simply a long and exhausting day but also of a year and a half of arduous discussions, debates and drafting. The Constituent Assembly had first considered and debated the proposals of its Sub-Committees from April 1947.23 At the end of August, the Drafting Committee was constituted. It took 106

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seven months to complete its task. By February 1948, the final document was placed before the public for eight months. So when Ambedkar stood up to introduce the Draft Constitution, and – in his words – to “meet the criticism . . . leveled against it”,24 the battle-lines had long been staked out, and the combatants entrenched in their respective positions. The Constitution’s chief architect was now going to raise the stakes: the document he was introducing would become the Constitution of India, subject to whatever changes and amendments members of the Constituent Assembly could muster up enough support for. Ambedkar’s introductory speech would lay out the broad contours of the debate that would follow for more than a year, before the Constitution was finally adopted. It was a remarkably wide-ranging speech, moving between different constitutional systems, institutions and structures, considering the role of the executive in the United States, parliamentary accountability in the United Kingdom, flexible federalism in Australia, the words of the historian Grote, the Irish resistance and the consolidation of Bismarck’s Germany. It was only at one point, however, that Ambedkar felt the necessity of invoking a court judgement in his support. The topic was the restriction of fundamental rights. The judgement was the opinion of the US Supreme Court in Gitlow v. New York.25 Ambedkar stated: It is wrong to say that fundamental rights in America are absolute. The difference between the position under the American Constitution and the Draft Constitution is one of form and not of substance . . . in support of every exception to the fundamental rights set out in the Draft Constitution one can refer to at least one judgment of the United States Supreme Court. It would be sufficient to quote one such judgment of the Supreme Court in justification of the limitation on the right of free speech contained in Article 13 of the Draft Constitution. In Gitlow Vs. New York in which the issue was the constitutionality of a New York “criminal anarchy” law which purported to punish utterances calculated to bring about violent change, the Supreme Court said: “It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.”26 What was Gitlow v. New York, the one judgement that Ambedkar felt could be invoked to justify the Drafting Committee’s restrictions upon 107

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fundamental rights (derisively referred to earlier by Somnath Lahiri as having been framed “from the point of view of a police constable”27)? A closer look at this case will, I believe, provide us with a window into the thinking of the Drafting Committee which, after a fierce battle, would become the thinking of the Constituent Assembly. The concerns that motivated seven American Supreme Court judges in Gitlow were similar to the concerns that motivated the framers, and, in many ways, form the bases of the pathologies of Indian free speech today. Benjamin Gitlow was a member of the “Left Wing Section” of the Socialist Party of the United States. At its first meeting, the Left Wing Section published its Manifesto in its paper, The Revolutionary Age, of which Gitlow was the business editor. The Manifesto called for the establishment of “revolutionary Socialism” through militant means such as mass industrial revolts and mass political strikes, ending with the overthrow of the parliamentary state, and the establishment of the proletarian dictatorship. Gitlow was tried and convicted under New York’s Criminal Anarchy Law, which penalised advocating the overthrow of organised government through force, violence or other unlawful means. The conviction was upheld on appeal. Before the Supreme Court, Gitlow’s lawyers argued that the Manifesto’s publication had not resulted in any public disorder, and nor had it been shown that there was any significant likelihood of public disorder. The criminal anarchy statute had been unconstitutionally applied by the lower courts, because they had failed to limit it to factual situations where there was some likelihood of unlawful consequences to speech, and instead penalised mere “utterance . . . of doctrine”.28 The Supreme Court disagreed. It distinguished between an abstract or academic discussion about unlawfully overthrowing the government, and “advocacy of action for accomplishment of that purpose”.29 It then cited the paragraph that Ambedkar quoted in his speech – that the freedom of expression did not mean an “unrestricted and unbridled license” to every use of language. The disturbance of public welfare and public peace, and the corruption of public morals, were all legitimate goals which the state could invoke to curtail speech.30 In particular, the Court noted that “utterances endangering the foundations of organized government”31 could be punished for the “imperative”32 reason that “these imperil its own existence as a constitutional State . . . the primary and essential right of self preservation; which, so long as human governments endure, they cannot be denied”.33 But what of the contention that there was nothing in the Manifesto that had actually endangered the government, or was even likely to endanger it? The Supreme Court responded with an institutional argument. It was for the state to make its own calculations about the putative dangers of various kinds of speech, because after all “a single revolutionary 108

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spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration”.34 Whether the link between the spark and the conflagration was remote or far-fetched as expressed in law was not a question that the Court was competent – or entitled – to answer. There are two overlapping ideas at the heart of Gitlow. The first is that the expression of certain ideas is off-limits even in a speech-protecting democracy. Extra-constitutional opposition to the constitutional order is one such idea. By upholding the prohibition of criminal anarchy, the Supreme Court effectively accorded the existing structure of the state legal immunity from ideological challenge, unless such a challenge was confined within the narrow parameters set by the state itself. The second is the assumption that citizens cannot be trusted with hearing certain kinds of speech, and deciding for themselves whether they find it persuasive, and wish to act upon it. In denying the requirement of proximity between speech and illegal action, and allowing the state to decide which “spark” could set off a revolutionary fire, the Court was also denying the autonomy of citizens to judge and evaluate arguments for criminal anarchy on their own merits. Both these ideas, I will argue, are crucial for understanding the shape of what finally became Articles 19(1)(a) and 19(2) of the Constitution of India, and for understanding how the Supreme Court has interpreted these articles over the decades. To place the debates in the Constituent Assembly in their appropriate context, however, we need to begin at the beginning: the gradual, embryonic development of an understanding of the freedom of expression as part of the nationalist movement, and the colonial British government’s response to it.

III The first agitation for free speech in colonial India arose in a context in which the ruling British were first beginning to grow aware of the potentialities of mass print media in the expanding colony. In 1823, the Governor-General issued an ordinance requiring all newspaper presses to obtain a compulsory license from the government, providing details about the printer, publisher, proprietor and others.35 This license was revocable at the Governor-General’s pleasure. In free speech terminology, this manner of restriction – which chokes of speech at its source, and prevents it from even entering the marketplace of ideas – is called “prior restraint”. Prior restraint has long been considered to be such an anathema that writing as far back as 1769, the English jurist Blackstone – not otherwise known for liberal views – was able to say that “the liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints 109

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upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity”.36 In Britain, ever since the expiry of the Licensing Act in 1692,37 the press had not been subjected to prior restraint by the state. In introducing the Press Ordinance, therefore, the colonial government was introducing into India the relics of a more authoritarian English past.38 The Press Ordinance was met with substantial resistance. The most famous is Raja Rammohan Roy’s Memorial to the Government, which he submitted during the period fifteen-day period that the Supreme Court was considering the legality of the Ordinance. In his Memorial, Roy made two arguments, which – borrowing from Arun Thiruvengadam39 – I will refer to as arguments from “particularism” and arguments from “universalism”. In his argument from particularism – i.e. grounded in some unique of peculiar feature of the Indian character – Roy pointed out the great opprobrium with which Indians regarded putting their signature or seal upon an affidavit, based upon their seeming inability to distinguish between voluntary and involuntary non-compliance, both of which were believed to lead to equally severe divine displeasure. The argument from universalism was more familiar: without an active press, Roy argued, the government would remain in the dark about the misdeeds being committed by its lesser officers. The press was an important line of communication between the rulers and the governed, the better to apprise the former about the true state of public opinion, and to thereby act as an aid to governance. Consequently, Roy argued for “unrestrained liberty of publication”,40 subject, of course, to the law of the land. In Roy’s protean defence of free speech against prior restraint, one interesting feature is the lockstep of universalist and particularist arguments. Contentions based in a supposedly unique Indian character and contentions invoking the universal value of free speech were complementarily employed in service of the goal of expanding free speech. This harmony was not to last: as we shall see, the two were often in an uneasy tension with each other. Here, I wish to flag the following point: the argument that the nature and scope of free speech must be responsive to a specific, Indian character is as old as the first recognisable conceptualisation of free speech (as such) in India, and it is an argument made by Indians. When, therefore, we see such arguments repeated in future times, what should surprise us is not their novelty, but their continuity. Roy was unsuccessful, and the Press Ordinance was upheld. Over the next century and a half, the press would go on to become one of the major 110

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terrains of contestation between the colonial government, and a rising, assertive nationalist movement. Press laws passed in 1878, 1908, 1910 and 1931, often in response to flashpoints such as the partition of Bengal and the Civil Disobedience Movement, were specifically targeted at the press qua sites of an evolving national and political consciousness. Through measures such as pre-publication deposits that could be confiscated by the local government, and vesting powers of forfeiture with the local police, the British sought to exert a tight control over the spread and impact of the press. The press laws were targeted at newspapers. The other weapon in the hands of colonial authorities to quell political speech was targeted at individuals: the law of sedition. Sedition was introduced into the Indian Penal Code by James Fitzjames Stephen in 1870, as a response to the rising Wahabi movement.41 In its original form, sedition criminalised the spreading of “disaffection” against the government. In 1892, Comor Petheram C.J. at the Calcutta High Court held that “disaffection” meant “either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey lawful authority of the Government, or to subvert or resist that authority [emphasis mine]”.42 The gravamen of the offence, therefore, was inducing disobedience of governmental authority. The formulation gave nationalists a way out: they could simply cast or frame their speeches in a way that made no mention of disobeying the government, while still sending across a powerful message to their listeners. To get around this loophole, a mere six months after Petheram C.J.’s judgement, the test was changed. In the first of the famous Tilak trials, Justice Strachey at the Bombay High Court held that “sedition” covered speech that was “[attributing to the government] every sort of evil and misfortune suffered by the people, or dwelling on its foreign origin and character, or imputing to it base motives, or accusing it of hostility or indifference to the welfare of the people [emphasis mine]”.43 A few months later, in Pratod’s case, the Court expanded the definition still further, to include causing “alienation from one’s allegiance”.44 Subsequent sedition convictions were carried out on the basis of “attributing dishonest or immoral motives to the government”45 (Tilak) and allegations that the government was abusing its power46 (Pothan Joseph). An attempt by Maurice Gwyer, writing for the Federal Court, to replace this state of affairs with a more speech-protective public-disorder-based test in Niharendru Dutt Majumdar47 was swiftly overruled by the Privy Council.48 The broadening of sedition law, therefore, signalled a shift from preventive action against words or speeches that could lead to active disobedience of the government, to suppression of all forms of speech that potentially questioned its legitimacy. In other words, it was a shift from protecting the 111

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actual authority of the government, to protecting its symbolic authority. The character of the state was off-limits, immune from critical speech, even if that speech had no possibility of translating itself into tangible consequences. The similarities with Gitlow v. State of New York, which Ambedkar quoted in defence of free speech restrictions in the Constituent Assembly, are obvious. If one arena of the free speech battle was political, another arena was cultural: and it was here that arguments from colonial difference played an important role.49 Indians, the argument goes, are so conditioned by their social and cultural context that they simply cannot receive certain forms of speech as autonomous beings, who are trusted to make up their minds for themselves about what they are listening to. An early example of this was Section 508 of the Indian Penal Code, framed in 1860 (it still exists today), which punishes causing, or attempting to cause, “any person to do anything . . . by inducing or attempting to induce that person to believe that he or any person in whom he is interested will become or will be rendered by some act of the offender an object of Divine displeasure”.50 A few years later, while discussing amendments to the sedition provision that sought to expand its reach, criticism was countered by the contention that “language may be tolerated in England which it is unsafe to tolerate in India, because in India it is apt to be transformed into action instead of passing off as harmless gas”.51 The arguments from colonial difference were at their starkest, as discussed earlier, in the context of stringent regulation of cinema, premised upon the assumption that the medium of film, with its verisimilitude, would have a specially deleterious effect upon the Indian mind because, as William Mazarella puts it, Indians were “incapable of the kind of critical reflexivity that was the sine qua non of coolly deliberative public reason”.52 A denial of autonomy was at the heart of colonial obscenity law as well, although here the arguments were no longer premised upon colonial difference. Rather, in an interesting inversion, they were premised upon the universality of the corruptibility of the lower classes.53 The English Hicklin test was used in India as well, with its focus upon the class of people most likely to be “corrupted” by a certain text. This was given its clearest exposition in Public Prosecutor v. Mantipragada Markondeyulu,54 where the Court noted that “the verses are calculated to engender lust and impure ideas in the minds of an ordinary reader, and when it is seen that the price is fixed so low as at one anna per copy so that it may reach the hands of as many as are capable of purchasing it”. The cheap price of the book, in other words, ensured that it would “fall into the hands” of those who would be seduced by its message of lust and impure ideas – i.e. those, because of their

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lower socio-economic station, who were unable to resist moral and mental corruption.

IV We have seen, therefore, that colonial free speech regulation cleaved along two distinct lines. One line, marked by Press Acts, the sedition law and so on, was aimed at defending the legitimacy of the regime from a rising nationalist movement. The second, in the domain of cultural regulation, was built upon the idea that of colonial difference, i.e. the incapacity of an Indian audience to respond to speech in an autonomous manner.55 Kant’s vision of the Enlightenment individual – free of tutelage, and with the courage to “use [his] own reason”56 – was not the individual of the colonies. Perhaps unsurprisingly, the throttling of free speech by the colonial government drew a strong response from the nationalist movement. Right from 1895, the nationalists framed their own bills of rights, which provided for strong civil rights protections. The 1895 Constitution of India Bill guaranteed the right to “express . . . thoughts by words or writings, and publish them in print without liability to censure . . . but [citizens] shall be answerable to abuses, which they may commit in exercise of this right and in the mode the Parliament shall determine”.57 Annie Besant’s 1917 Congress Resolution demanded “the removal of all hindrances to free discussion”.58 The Commonwealth of India Bill, which was defeated in the British Parliament in 1925, called for ‘free expression of opinion”.59 Three years later, in the Motilal Nehru Report, the guarantee was rendered more concrete, making it subject to “public order or morality”.60 As Arun Thiruvengadam perceptively notes, “what is striking . . . is the near absence of language on restrictions that could be imposed on the right”.61 This attitude towards free speech was perhaps best summed up by Gandhi, who argued that “assemblies of people [ought to be able to] discuss even revolutionary projects, the State relying upon the force of public opinion and the civil police, not the savage military at its disposal, to crush any actual outbreak of revolution that is designed to confound public opinion and the State representing it”.62 Gandhi’s words were mirrored by that of the American judge, Louis Brandeis who, along with Oliver Wendell Holmes, dissented in a number of important American free speech cases in the 1920s and 1930s, including Gitlow. In Whitney v. California, a case with facts similar to Gitlow, Justice Brandeis wrote that “if there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence”.63 At the heart of both was a vision of the autonomous

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citizen-individual as listener, who was responsible for how he or she chose to respond to the speech in question. However, by the time independence was around the corner, and when the Fundamental Rights Sub-Committee presented Draft Clause 8 to the Constituent Assembly, the structure of the free speech provision had changed radically. Draft Clause 8 stated: There shall be liberty for the exercise of the following rights subject to public order and morality or to the existence of grave emergency declared to be such by the Government of the Union or the Unit concerned whereby the security of the Union or the Unit, as the case may be, is threatened: (a) The right of every citizen to freedom of speech and expression: Provision may be made by law to make the publication or utterance of seditious, obscene, blasphemous, slanderous, libellous or defamatory matter actionable or punishable. Almost immediately, this formulation met with stiff resistance. Somnath Lahiri accused the Fundamental Rights Sub-Committee of operating from the point of view of a “police constable”. In particular, Lahiri was concerned about the emergency exception that was attached to the rights. Echoing Carl Schmitt’s logic64 – albeit for very different ends – he argued that “what constitutes a ‘grave emergency’ God alone knows. It will depend on the executive obtaining at a particular period of government. So, naturally anything that the party in power or the executive may not like would be considered a grave emergency and the very meagre fundamental rights which are conceded in this resolution will be whittled down”.65 In the same speech, Lahiri highlighted the hostility of the colonial government towards the press, and how, through compelled security deposits and other such weapons, the British had succeeded in crushing the press.66 Why then, he asked, did the Constitution not explicitly guarantee the freedom of the press? In a subsequent debate, he argued for replacing “security of the Union” with “defence of the Union”, once again pointing out how a word as vague as “security” had been repeatedly abused by the state to suppress speech.67 Lahiri’s critique, therefore, was born out of the lived experiences of the battling a colonial government intent on repressing the freedom of speech and expression. Implicit in his argument was the assumption that the nature of the state – whether colonial or postcolonial – remained the same; what the Constitution meant to transform was the relationship between state and individual. The more powers the Constitution gave to the State, the more broad and vaguely 114

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word restrictions it put upon the freedom of speech, the more its transformative promise was vitiated. Lahiri was not the only member of the Assembly who voiced this fear. At the height of the debates around Draft Article 13 on December 1 and 2, 1948, Bhopinder Singh Man accused the Drafting Committee of wanting to “continue the old order . . . if a meeting is held, then for breaking it up lathis may be used, and people may be put into jail without trial; their organisations may be banned and declared illegal. We do not like this shape of things”.68 Other speakers referred to colonial laws such as the Goonda and the Public Safety Acts, and asked whether such laws would continue to operate because of the restrictions clause.69 Lahiri, indeed, went one step further, proposing a specific amendment prohibiting the demanding of securities as a precondition for keeping a press (which had been the staple feature of all the repressive colonial Press Acts).70 His proposal was rejected. Distrust of the state was also the underlying motivation of another set of objections to the wording of the restrictions clause. Sardar Hukam Singh perceptively noted that the phrase “in the interest of”, placed just ahead of the substantive restrictions, would serve to reduce the Supreme Court’s area of review to a very narrow sliver. The question of whether a legislation was “in the interest” of the security of the State, for instance, would restrict the Court to merely being able to interrogate its bona fides.71 “The proviso in article 13(3)”, he argued, “has been so worded as to remove from the Supreme Court its competence to consider and determine whether in fact there were circumstances justifying such legislation”.72 Pandit Thakur Dass Bhargava suggested a way out: add “reasonable” before “restrictions”. This, he suggested, would ensure that “the courts shall have to go into the question and it will not be the legislature and the executive who could play with the fundamental rights of the people. It is the courts which will have the final say”.73 In that context, Hukam Singh, in fact, took on Ambedkar on his own terms. Ambedkar’s argument that he could produce a foreign precedent for every restriction placed in Draft Clause 13(2), he argued, was inapposite, because in other countries, it was the judiciary’s task to balance the competing interests of liberty and social order.74 Singh and Bhargava’s approach was, of course, different from Lahiri’s. The latter wanted to hamstring the power of the state by modifying or removing the substantive restrictions that the Constitution would allow it to place upon the freedom of speech. The former sought to do it by empowering the Courts, in the expectation that the judiciary would play its classic counter-majoritarian role, and keep the state in check. At the heart of both approaches, though, was the common felt need to place a stronger barrier between the individual and the state, than what the draft Constitution was offering. 115

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These arguments were strongly resisted. The structure of the responses merits close attention. Defenders of the draft Constitution were faced with justifying continuity – continuity of wide, discretionary powers to the state, on lines similar to that which had existed in colonial times. Despite Ambedkar’s protestations that every constitution allowed for restricting free speech rights, the similarities with the colonial regime – down to the retention, in the draft Constitution, of sedition – were too stark to go unaddressed. Two arguments were raised for the defence. Shri K. Hanumanthaiya argued, for instance, that the legislature was the better forum for the regulation of fundamental rights, because “the legislature consists of real representatives of the people as laid down in this Constitution. If, at a particular time, the legislature thinks that these rights ought to be regulated in a certain manner and in a particular method, there is nothing wrong in it, nothing despotic about it, nothing derogatory to these fundamental rights”.75 Algu Rai Shastri drew a link between representative government and the public interest, arguing that “those who would sit in the legislatures would be representatives of the people and they will impose only those restrictions which they consider proper”.76 Brajeshwar Prasad added to this, justifying the restrictions by arguing that “it is wrong to regard the State with suspicion. Today it is in the hands of those who are utterly incapable of doing any wrong to the people. It is not likely to pass into the hands of the enemies of the masses”. Prasad’s focus on “today” reveals the crucial move: it was the transformation of the form of government that justified the continuity of the legal regime. The problem had never been with giving wide powers to the State. The problem had been that the state was an alien one, which had no legitimacy to use those powers, and frequently abused them.77 This, indeed, reveals a tension at the heart of the “transformative” Constitution. Justice Vivian Bose’s vision of transformation – transformation to popular sovereignty – was at odds with the Punjab High Court’s vision when it struck down sedition – transformation in the balance of power between individual and state. Lahiri, though, had already come up with an elegant rebuttal: “Sardar Patel”, he argued, “has the support of the overwhelming masses of the people and, therefore, he can do with much less powers to rule the country than an autocratic government would require”.78 The question of whether or not a popularly elected government would abuse its discretionary power, therefore, was a secondary question: why would a popularly elected government need discretionary power in the first place? It was in responding to this manner of argument – the second line of defence – that the shadow of Gitlow lingered over the Assembly. In his response to Lahiri, for instance, Prof. N. G. Ranga argued that the reason for restrictions was to ensure that “people who believe in liberalism at one 116

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end and communism at the other will not be enabled to take advantage of these rights to pave the way for totalitarianism”.79 Indeed, in responding to Lahiri’s suggestion that the word “security” be replaced with the narrower “defence”, Patel effectively accused him of acting in bad faith, with the intention of hamstringing the government in its attempts to counter internal chaos.80 Shri Hanumanthaiya noted that “we are faced, within our own society, with elements who want to take advantage of those rights in order to do violence to men, society and laws”.81 Much like in Gitlow, the defenders of the Draft Constitution were not concerned with making out a positive case for the linkage between speech and the actual overthrow of the state. For instance, the observation the fundamental freedoms could be taken advantage of in order to establish totalitarianism was justified by entirely ahistorical invocations of the Weimar Republic.82 I would argue, on the other hand, that it was something else that was motivating the Assembly members, something that is not quite so evident in the free speech debates as it is in the debates on the nondiscrimination clause. The draft clause, when it was introduced by Patel at the end of April 1947, read: “The State shall make no discrimination against any citizen on grounds of religion, race, caste or sex”. Somnath Lahiri proposed an amendment, arguing that “political creed” ought to be added to religion, race, caste or sex, on the lines of other constitutions.83 The response to this was telling. H. V. Kamath, for instance, immediately objected, stating that: I do recognise that times may arise when we may have to discriminate against persons who hold a creed which seeks to subvert the State by violence or similar objectionable methods. We may have to impose discrimination against such persons.84 While Kamath did not clarify what these “similar objectionable methods” were, the import of his speech was obvious: it was aimed at suppressing not the violence, or the likelihood of the outbreak of violence that might result out of the propagation of certain creeds, but the creeds themselves. Patel himself felt constrained to respond to Lahiri, and he was even plainer: “I think it is an absurd idea to provide for nondiscrimination as regards a political creed. Political creed may be of any kind. There may be some political creeds highly objectionable. Some may not be deserving of discrimination, but may actually be deserving of suppression altogether”.85 This shift from actual violence or disorder – which is what Gandhi and Justice Brandeis were concerned about – to the suppression of the idea qua idea – is similar to the shift in sedition law from Petheram to Strachey: speech is restricted not for its affect, but for its communicative content; and 117

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in Kamath’s and Patel’s strong objection to including a guarantee against political discrimination, it is clear that the content that concerned them – as it concerned Strachey and the colonial lawmakers – was one that fundamentally questioned the legitimacy of the existing order. Here again, there was continuity in the form of the argument, but everything was changed because of the nature of the entity that was not wielding power. To sum up, then: the cleavage in the Constituent Assembly reflected a disagreement over what, precisely, was the nature of the transformation that the Constitution was supposed to reflect. For Lahiri and many others, it was meant to fundamentally transform the balance of power between state and individual by curtailing what the state could do to the individual. This would require a change in the legal forms of control and authorisation within which the state could function. Laws such as the Press Acts, and sedition, would have to go. On the other hand, for the Drafting Committee and its supporters, the transformation was in who ruled. The evil in the old laws was not in what they allowed the government to do, but that the government was alien. With that transformation, the old order, implemented by a new dispensation, could now go on. And, indeed, the very fact that the new order was legitimate, in turn, enabled and justify it to use the force of law to resist attacks upon its legitimacy, regardless of what tangible impact such attacks might have in the real world. The difference is reflected starkly in Professor K. T. Shah’s protestations against the draft Emergency provisions: I feel that this [the draft Emergency Provision] is utterly indistinguishable from the series of Ordinances which were issued in 1942, wherein not only the occurrence of commission of an act was made punishable but even the likelihood of such an act being committed was made liable to action under the Ordinance. If this Government that we are constituting now, if the State that we are setting up under this Constitution, is not to be distinguishable for liberalism, for tolerance, for freedom of thought and expression to the citizen, in any way from the preceding Government, except that the complexion of the rulers would be different, then I am afraid we are not being true to. the pledges that have been given to the people of this country, viz., that Swaraj would be really Ram Raj on this earth.86 And lastly: if on the one hand, the change in the nature of government was believed to allow for the continuity of the forms of pre-colonial restrictions upon the freedom of speech, on the other hand, it is equally important to note the arguments that were not made. Constituent Assembly 118

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members, unsurprisingly, did not echo arguments from colonial difference, that focused upon Indians’ inability to respond to speech in a reasoned and rational way, an argument that was closely linked to the denial of suffrage. To be sure, arguments invoking an Indian particularity were used: but they were arguments based on circumstances, and not character.87 Just before he expressed his gratitude at the removal of sedition from draft Article 13(2), Seth Govind Das observed that “I would have myself preferred that these rights were granted to our people without the restrictions that have been imposed. But the conditions in our country do not permit this being done”.88 What were these conditions? He did not specify, apart from saying that the “government is in its infancy”,89 and darkly hinting at the situation in Burma and China, which were then undergoing a civil war. T. T. Krishnamachari used the same language, although he added a temporal dimension to it: “it is quite possible that ten years hence the necessity for providing in the Fundamental Rights an exclusion of absolute power in the matter of freedom of speech and probably freedom to assemble, will not be necessary. But in the present state of our country I think it is very necessary that there should be some express prohibition of application of these rights to their logical end”.90 While Pandit Hirday Nath Kunzru did understand the restrictions as being “considered necessary in every country”,91 and Alladi Krishnaswami argued in the abstract language of finding a balance between freedom and social control92 – and Ambedkar himself referred to the US Constitution to make his argument – there was an overwhelming concern in the Assembly to ensure that the nation, held together in a fragile way, of its dissentient parts, would not disintegrate. This sentiment came out particularly strongly during debates over the Emergency provisions, where repeated references were made to the “situation in Bengal and Madras”.93 Although Krishnamachari did hint at an Indian particularity by referring to the “genius of our people . . . [and our] ideas of liberty which are still today in a very undeveloped state”,94 this was a minority opinion. The changed ideas are particularly visible in a debate on another, quite different question: that of universal suffrage. The Indian Constitution was perhaps unique in its time in providing for universal suffrage at one fell stroke. In other nations, suffrage began as a privilege of propertied, educated males of particular racial stock, before gradually expanding to include all adult citizens, an expansion that had to overcome arguments that the disenfranchised, whether because of their sex, colour or socio-economic status, did not possess the maturity to vote responsibly and independently.95 These arguments, of course, mirrored the basic argument of colonial difference. The momentousness of initiating a near-complete transformation from subject to citizen at one fell stroke was not lost upon the framers. Alladi 119

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Krishnaswami Ayyar, one of the towering figures of the Assembly, noted that “more than any other provision in the Constitution. I should think the boldest step taken by this Assembly is in the matter of universal adult suffrage with a belief in the common man and in his power to shape the future of the country”.96 Responding to objections that the granting of suffrage would be a huge risk in a country largely composed of illiterate persons, he would go on to say that “in spite of the ignorance and illiteracy of the large mass of the Indian people, the Assembly has adopted the principle of adult franchise with an abundant faith in the common man and the ultimate success of democratic . . . it cannot after all be assumed that a person with a poor elementary education and with a knowledge of the three Rs. is in a better position to exercise the franchise than a labourer, a cultivator or a tenant who may be expected to know what his interests are and to choose his representatives”.97 Here, the Constitution was transformative: every adult Indian was a citizen, presumed to be autonomous and responsible enough so as to be capable of participation in the core public activity of democracy. Indeed, the entire nationalist movement had been premised upon the capacity of Indians for self-rule: it would therefore have been paradoxical for arguments from colonial difference to find their way into the Constitution, even though there were enough in the Assembly who supported them.

V Let us sum up. Colonial control over free speech was of two types: political control, aimed at suffocating the growth of the press through burdensome laws, and political protest through sedition. The overriding objective was to silence challenges to the legitimacy of colonial rule. The other was cultural, expressed through obscenity laws, film censorship, etc. This was premised on colonial difference, on the natives’ inability to receive speech in the autonomous way that the men of the Enlightenment could. The Constituent Assembly produced a free speech clause, whose extensive restrictions mimicked colonial law. This was attacked for its continuity with the times before, as a betrayal of the transformative promise of the moment of framing. It was defended on the ground that the transformation was in the manner of government, which, in turn, justified continuity in laws; that speech that challenged the very legitimacy of the new government could, for the same reason, be proscribed; and that the exigent situation in India demanded broader restrictions than would be ideal. It was the second and third justifications that – as we can see – mirrored colonial discourse: the first in insulating the legitimacy of the government against challenge, and the second as invoking an Indian particularity (albeit in a slightly different way) to justify greater restrictions. 120

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I will now argue that in many ways, the patterns of Indian free speech jurisprudence replicated the discourse in the Constituent Assembly, and in one significant way, they departed from it. Let me begin with the latter. Two years after the Constitution was framed, the Provisional Parliament (which, at the time, consisted of the members of the Constituent Assembly framed the Representation of the People Act, a law for the conduct of elections. Section 123(2)(a)(ii) of the Act defined as a corrupt electoral practice “induc[ing] or attempt[ing] to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure”.98 Readers will note immediately the similarity with Section 508 of the colonial penal code: indeed, the idea of colonial difference is wired into Section 123(2)(a)(ii), which treats the Indian voter as so gullible and religious-minded that her vote can be acquired simply on the promise or threat of divine intervention. In interpreting S. 123(2)(a)(ii) (and other similar provisions), the Courts held that religious appeals effectively overrode individual autonomy.99 In Harcharn Singh, for example, the Court seemed to accept the argument that “Section 123(3) was designed to ensure that ‘powerful emotions generated by religion should not be permitted to be exhibited during election and that decision and choice of the people are not coloured in any way [emphasis mine]”.100 Here was the idea of colonial different, kept out of the Constituent Assembly, back in streaming colours. As Pratap Bhanu Mehta put the point, on a combined reading of the cases, “the courts assume throughout that citizens are, when it comes to receiving religious speech, or speech about religion, incapable of managing the impressions they receive . . . we are incapable of receiving the expression on our own terms; incapable of managing our own responses; condemned to receiving these expressions unfreely and helplessly; incapable as it were, of self-discipline”.101 This “incapacity” to receive certain forms of speech “on our own terms” has haunted the Courts’ free speech jurisprudence. The famous case of Ramji Lal Modi involved a constitutional challenge to the colonial Section 295A of the Indian Penal Code, which criminalised insulting religious feelings. It was argued that the provision violated Article 19(1)(a) of the Constitution, and was not saved by the public order restriction, since it did not distinguish between religious insults that, all things considered, were likely to cause public disorder, and those that weren’t. Rejecting the argument, the Court created a legal fiction: intentional insult to religious sentiments ex hypothesi were presumed to have a tendency towards public disorder.102 Indians were – in Mehta’s words – “incapable of managing their own responses”. A similar discourse was employed in the Court’s obscenity cases which, as we saw, adopted the Hicklin test (well after its abandonment in its home 121

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country), expressly aimed at “protecting” those who could not protect themselves from moral corruption. The similarities were even starker in film censorship cases. As we saw above, in K. A. Abbas, the Supreme Court upheld pre-censorship of films under the 1952 Cinematograph Act (strikingly contemporaneous with the Representation of the People Act), which was strongly modelled upon colonial lines. K. A. Abbas v. Union of India is an interesting judgement, because it reveals continuities that operated not only at the level of legal doctrine, but also at the level of conceptions of the role of free speech for the individual, the society and the state. Film censorship during the time of the British was premised on the idea of colonial difference. Excitable natives, unable to achieve critical mental and emotional distance especially when faced with the verisimilitude of the film screen,103 were – it was argued – being “subjected to wholly unprecedented provocations”.104 The justification for heavy-handed film censorship was part of the broader justificatory apparatus of colonial rule: pre-Enlightenment Indians were not yet fit for autonomous self-government, and needed the guidance and tutelage of the British to bring them to that point, located in an undefined future time.105 In K. A. Abbas, however, this fact seemed to have no bearing upon the Court’s decision. The verisimilitude of the cinema; its effect upon a population somehow lacking vital facilities of discernment and the role of the state as tutor: each of these reasons was adduced in the judgement, its logic proceeding in lockstep with its colonial predecessor: “[because of] the instant appeal of the motion picture”, noted Justice Hidayatullah, “. . . its versatility, realism (often surrealism), and its coordination of the visual and aural senses . . . the motion picture is able to stir up emotions more deeply than any other product”.106 The interest of the public, he held, was in good, wholesome cinema, and the role of the state, as “parens patriae”,107 was to ensure it. Two decades later, in S. Rangarajan v. P. Jagjivan Ram, the Court would sharpen its rhetoric even further, drawing a distinction between (discerning) newspaper readers and the cinema-going “mass audience who are generally not selective about what they watch . . . [consequently] the movie cannot be equated with other modes of communication. It cannot be allowed to function in a free market place just as does [sic] the newspapers or magazines”.108 The excitable colonial subjects were now the unselective mass audience of independent India, neither of which could be trusted to respond responsibly to events on the screen. If the Constitution, then, was meant to create the autonomous citizen who was presumed to be competent enough to engage in the activities of self-government, free speech judgements interpreting Article 19(1) (a), on the other hand, created the figure of the native (as seen through colonial eyes), incapable of reasoned and responsible choice. But was the 122

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Constitution, indeed, meant to create the autonomous citizen, as I tentatively argued in the previous section? Perhaps not. For all Alladi Krishnaswami Ayyar’s ringing declarations of universal suffrage, the Constituent Assembly was careful enough to refrain from guaranteeing a fundamental right to vote, and careful enough to expressly provide that the Parliament could legislate disqualifications both upon voting rights, and upon the right to stand for elections.109 The Representation of the People Act was framed by the very same individuals who sat in the Constituent Assembly; and they not only adopted the divine displeasure provision for the IPC but also signalled their distrust of voters even further, by legislating against appeals to caste and religion as part of political campaigning.110 True, after decades of campaigning for the right to self-rule, the members of the Assembly could hardly have expressly endorsed colonial difference. But actions speak louder than words, and the Representation of the People Act is a legislation enshrining colonial difference par excellence. If the Constitution was meant to be transformative in this sense, then the first major law passed after its birth severely undermined its claim. Perhaps, then, the Courts have only been false to the rhetoric of the Assembly, while remaining true to the underlying motivations of the framers. As Edward Said reads Partha Chatterjee, “to [a statesman like Nehru] the peasants and the urban poor are ruled by passions, not reason; they can be mobilized by poets like Tagore and charismatic presences like Gandhi, but after independence this large number of people ought to be absorbed into the state, to be made functional in its development”.111 This distinction between reason and passion motivated the speech-restricting provisions of the Representation of the People Act, and has motivated the Court in its judgements on religious speech, on obscenity, on hate speech, etc. In other areas, the relationship between the Debates and free speech jurisprudence is easier to decipher. Brajeshwar Prasad and his companions’ arguments that the change in the nature of the state justified continuity in old, widely framed, speech-restricting laws found judicial sanction in a doctrine of judicial deference. In Virendra v. State of Punjab, while upholding prior restraint upon the press under a “Special Powers Act” that strongly resembled colonial press laws, the Supreme Court noted that “no assumption ought to be made that the State Government or the authority will abuse its power”.112 In upholding prior restraint upon assemblies under Section 144 of the CrPC, the Court observed that its use should be restricted to emergencies, but refused to strike down the provision which, in its language, made no such distinctions. In interpreting Section 95 of the CrPC, which allows the state to ban and forfeit books if it “appears” that the book has violated one of a series of listed laws, the Court held that the state need not prove that any law had been broken, only that there was a 123

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prima facie appearance that such might be the case. After that, the burden of dislodging that appearance, and proving that the book had not broken a law, lay upon the person who challenged the ban!113 All of these cases, ultimately, invoke the same set of assumptions used by the defenders of the draft free speech clause: that there is no need to redress the balance of power between state and individual in favour of the latter, because the state will, it is presumed, use its power wisely and well. The second set of defences – that certain founding ideas about state and nation are simply beyond questioning or criticism – has found both legislative and judicial sanction. Under the Unlawful Activities Prevention Act of 1967 (which has never been challenged), the mere “questioning” of the legitimacy of India’s territorial borders is a crime.114 In Union of India v. Naveen Jindal, the Supreme Court held that citizens had the right to fly the national flag, as long as they did so with respect.115 In Bijoe Emmanuel, the Supreme Court held that certain Jehovah’s Witnesses could not be compelled to sing the national anthem as long as they stood respectfully while it was being played.116 However, perhaps the most significant set of cases belong in the realm of contempt of court law. In a progression that almost mirrors the progression of colonial sedition, the Court moved from punishing speech that had a tendency to obstruct the course of justice, to speech that challenged the “authority” of the Court, or undermined its “haze of glory”.117 The reputation or authority of the Court (as a wing of state), therefore, became something to be protected as an end in itself (much like the legitimacy of the colonial government), with the only the vaguest of connections to actual, tangible harm. The last of the defences in the Assembly – that special conditions needed special laws – has been instantiated in a number of “Emergency laws” (upheld by the Courts), a complete analysis of it would be beyond the scope of this chapter.118 It has, however, also found its way into free speech jurisprudence. In R. Rajagopal v. State of Tamil Nadu, the Supreme Court invoked the “lack of awareness” among Indians (as opposed to our Western counterparts), to justify adopting a watered-down version of the New York Times v. Sullivan119 test for defamation of public officials. And perhaps most ironically of all, in 2014, the Delhi High Court justified a ten-day ban on the TV Channel Comedy Central, by observing that in a “nascent republic” like India, social and cultural stability were of paramount importance.120 Sixty-seven years after independence, according to the High Court, we are still a “nascent republic”. When we think of this in the context of our free speech jurisprudence in cases of electioneering, religious speech and film censorship, one might be forgiven for thinking that the British never really left: we continue to remain in the waiting room of history, in perpetual watch for the day when we shall finally be ready to receive subversive 124

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speech with the engaged detachment of the autonomous, responsible Enlightenment individual. As we have seen, however, that idea is not the invention of the Courts. Its roots lie in the moments of the framing, and in its immediate aftermath: in particular, the choice of the framers to create a conservative Constitution, and not a transformative one.

Notes 1 Virendra Singh v. State of Uttar Pradesh (1955) 1 S.C.R. 415. 2 Ibid., ¶43. 3 Tara Chand Gopi Chand v. State (1951) Crim.L.J. 449. 4 Ibid., ¶13. 5 Kedar Nath Singh v. State of Bihar (1962) Supl. (2) S.C.R. 769. 6 Ibid., ¶18. 7 (1950) Supp SCR 245. 8 Ibid. 9 Niharendu Dutt Majumdar v. The King, AIR 1939 Cal 703. 10 Kedar Nath Singh v. State of Bihar (1962) Supl. (2) S.C.R. 769. 11 (1965) 1 SCR 65. 12 Ibid., ¶6; Queen v. Hicklin (1868) L.R. 3 Q.B. 360. 13 (1971) 2 S.C.R. 446. 14 The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia (1960) S.C.R. (2) 821. 15 State of Bihar v. Shailabala Devi (1952) S.C.R. 654. 16 Ramji Lal Modi v. State of U.P. (1957) S.C.R. 860. 17 Kedar Nath Singh v. State of Bihar (1962) Supl. (2) S.C.R. 769. 18 Ranjit Udeshi v. State of Maharashtra (1965) 1 SCR 65. 19 Babulal Parate v. State of Maharashtra (1961) S.C.R. (3) 423. 20 State of U.P. v. Lalai Singh Yadav (1977) S.C.R. (1) 616. 21 Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton, NJ: Princeton University Press, 2007). 22 Constituent Assembly Debates Vol. VII (4 November 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p1b.htm 23 Constituent Assembly Debates Vol. III (25 November 1949), available at http://parliamentofindia.nic.in/ls/debates/vol3p1.htm 24 Constituent Assembly Debates Vol. VII (4 November 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p1b.htm 25 286 US 652 (1925). 26 Constituent Assembly Debates Vol. VII (4 November 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p1b.htm 27 Constituent Assembly Debates Vol. III (29 April 1947), available at http:// parliamentofindia.nic.in/ls/debates/vol3p2.htm 28 288 US 652, p. 664. 29 Ibid., p. 665. 30 288 US 652, p. 667. 31 Ibid. 32 288 US 652, p. 667. 33 Ibid., p. 668. 34 288 US 652, p. 669.

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35 R. Chaudhuri, “The Story of the Indian Press”, Economic and Political Weekly, 7:9 (26 February 1955), 291. 36 William Blackstone, 4 Commentaries on the Laws of England (Clarendon Press: Oxford, 1769). 37 Licensing of the Press Act, 1662, 14 Car. II. c. 33. 38 Interestingly, in an account published in 1867, John Henry Marshman pointed out that the Ordinance was targeted, in particular, at the Calcutta Journal – a periodical run by an Englishman 39 Arun Thiruvengadam, “The Interplay of the Universal and the Particular in the Evolution of the Constitutional Right to Free Speech in India (1800– 1950)”, CALS Myanmar Working Paper No. 2 (June 2014), available at http://law.nus.edu.sg/pdfs/cals/working_papers/CALS/CWPS002.pdf 40 Jogendra Chunder Ghose (ed.), The English Works of Raja Rammohun Roy (1901), p. 297. 41 Indian Penal Code Amendment Act, No. 27 of 1870. 42 Queen-Empress v. Jogendra Chundra Bose (1891) ILR 19 Cal 35, ¶12. 43 Queen-Empress v. Bal Gangadhar Tilak (1897) ILR. 22 Bom 112, p. 151. 44 Queen-Empress v. Ramchandra Narayan (1897) LLR 22 Bom 152. 45 Emperor v. Bal Gangadhar Tilak (1917) 19 BOMLR 211, ¶23. 46 In Re: Pothan Joseph (1932) 34 BOMLR 917. 47 AIR 1939 Cal 703. 48 King-Emperor v. Sadashiv Narayan Bhalerao (1947) L.R. 74 I.A. 89. 49 Of course, the line between the political and the cultural arenas is a fluid one. For instance, the Dramatic Performances Act of 1857 was framed to regulate the theatre and, over time, came to be used as a political weapon. 50 Indian Penal Code, Act No. 45 of 1860, §508. 51 Donogh, A Treatise on the Law of Sedition and Cognate Offences in British India, Penal and Preventive (Calcutta : Thacker, Spink & Co., 1911), p. 64. 52 William Mazarella, Censorium: Cinema and the Open Edge of Mass Publicity (Durham, NC: Duke University Press, 2013), p. 17. It’s important to acknowledge that justifications for regulating cinema were not based solely upon the idea of colonial difference qua autonomous reception of cinematic imagery, but also, more specifically, upon a fear of the lustful native gaze cast upon white women on screen. 53 Heath, “Sanitizing Modernity: Imperial Hygiene, Obscenity, and Moral Regulation in Colonial India”. In Saurabh Dabe (ed.), Enchantments of Modernity-Empire, Nation, Globalization (New York: Routledge, 2009), pp. 113–132, p. 113. 54 37 Ind Cas 521. 55 There were also free speech provisions that do not fit neatly into either category. Sections 295A (blasphemy) and 153A (spreading hostility or enmity between groups) were penal provisions aimed at mediating the relationships between (primarily) religious groups, as well as groups and their constituents. For a history of Section 295A, see Neeti Nair, “Beyond the ‘Communal’ 1920s: The Problem of Intention, Legislative Pragmatism, and the Making of Section 295A of the Indian Penal Code”, The Indian Economic and Social History Review, 50:3 (2013), 317. 56 Immanuel Kant, An Answer to the Question: “What Is Enlightenment?” Translation by H. B. Nisbet. Kant’s Political Writings (Cambridge: Cambridge University Press, 1970), pp. 54–60.

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57 See B. Shiva Rao et al., The Framing of India’s Constitution: Select Documents. Indian Institute of Public Administration [Bombay: N. M. Tripathi, 1966], p. 5. 58 Ibid., p. 31. 59 Rao, supra note 66, p. 43. 60 Rao, supra note 66, p. 59. 61 Thiruvengadam, supra note 49, at 29. 62 Dennis Dalton.  Gandhi: Selected Political Writings (Hackett Publishing, 1996), p. 106. 63 274 US 357, 377 (1927). 64 See John McCormick, Carl Schmitt and Constitutional Emergency Powers, in David Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism (Durham, NC: Duke University Press, 1998), pp. 217–51. 65 Constituent Assembly Debates, Vol. III (29 April 1947), available at http:// parliamentofindia.nic.in/ls/debates/vol3p2.htm 66 Ibid. 67 Constituent Assembly Debates, Vol. III (29 April 1947), available at http:// parliamentofindia.nic.in/ls/debates/vol3p3.htm 68 Constituent Assembly Debates, Vol. VII (2 December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p18a.htm 69 Constituent Assembly Debates, Vol. VII (2–3 December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p18a.htm. 70 Constituent Assembly Debates, Vol. III (29 April 1947), available at http:// parliamentofindia.nic.in/ls/debates/vol3p2.htm 71 Constituent Assembly Debates, Vol. VII (1 December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p17b.htm. 72 Ibid. 73 Constituent Assembly Debates, Vol. VII (1 December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p17b.htm. 74 Ibid. 75 Constituent Assembly Debates, Vol. VII (2 December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p18a.htm 76 Ibid. 77 Constituent Assembly Debates, Vol. VII (2 December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p18a.htm 78 Constituent Assembly Debates, Vol. III (29 April 1947), available at http:// parliamentofindia.nic.in/ls/debates/vol3p2.htm 79 Ibid. 80 Constituent Assembly Debates, Vol. III (29 April 1947), available at http:// parliamentofindia.nic.in/ls/debates/vol3p3.htm 81 Constituent Assembly Debates, Vol. VII (2 December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p18a.htm 82 Constituent Assembly Debates, Vol. III (29 April 1947), available at http:// parliamentofindia.nic.in/ls/debates/vol3p2.htm 83 Ibid. 84 Ibid. 85 Ibid. 86 Constituent Assembly Debates, Vol. IX (2 August 1949), available at http:// parliamentofindia.nic.in/ls/debates/vol9p3b.htm 87 Thiruvengadam, supra note 49.

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88 Constituent Assembly Debates, Vol. VII (2 December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p18a.htm 89 Ibid. 90 Constituent Assembly Debates, Vol. VII (2 December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p18b.htm 91 Constituent Assembly Debates, Vol. III (29 April 1947), available at http:// parliamentofindia.nic.in/ls/debates/vol3p2.htm 92 Constituent Assembly Debates, Vol. VII (6 December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p20b.htm 93 Constituent Assembly Debates, Vol. IX (4 August 1949), available at http://parliamentofindia.nic.in/ls/debates/vol9p5a.htm 94 Constituent Assembly Debates, Vol. VII (2 December 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p18b.htm 95 Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000). 96 Constituent Assembly Debates, Vol. VII (8 November 1948), available at http://parliamentofindia.nic.in/ls/debates/vol7p4b.htm 97 Constituent Assembly Debates, Vol. XI (23 November 1949) http://parliamentofindia.nic.in/ls/debates/v11p9m.htm 98 Representation of the People Act, §123(2)(a)(ii). 99 See e.g. Ram Dial vs Sant Lal, AIR 1959 P&H 240; Orissa High Court in Yulitha Hyde vs State of Orissa, AIR 1973 Ori 116. For a more detailed version of the argument, see Gautam Bhatia, Offend, Shock, or Disturb: Freedom of Speech Under the Indian Constitution (Oxford: Oxford University Press, 2015). 100 S. Harcharn Singh v. S. Sajjan Singh, AIR 1985 SC 236. 101 Pratap Bhanu Mehta, Passion and Constraint, available at www.indiaseminar.com/2003/521/521%20pratap%20bhanu%20mehta.htm (last accessed 24 October 2015). Of course, the Representation of the People Act was framed by the Provisional Parliament, which was more or less an extension of the Constituent Assembly. It might therefore be argued that even if colonial difference was not an underlying theme of the Assembly, that makes little difference if it crept into the deliberations of the Provisional Parliament. In that sense, the Courts’ interpretation of the RP Act is more in accordance with the framers’ intentions, than counter to it. While this argument is valid enough on its own terms, I want to make a slightly distinct point: while the RP Act might encode colonial difference in its provisions, it was the Courts that framed colonial difference as a justification for upholding the RP Act, and other similar provisions. 102 Ramji Lal Modi v. State of Uttar Pradesh, AIR 1957 SC 620. 103 See T. Ganti, “The Limits of Decency and the Decency of Limits”. In W. Mazzarella and R. Kaur (eds.), Censorship in South Asia: Cultural Regulation from Sedition to Seduction (Bloomington: Indiana University Press 2009), p. 87. 104 W. Mazzarella, “Making Sense of Cinema in Late Colonial India”. In W. Mazzarella and R. Kaur (eds.), Censorship in South Asia: Cultural Regulation From Sedition to Seduction (Bloomington: Indiana University Press 2009), p. 71.

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105 See e.g. Udit Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press 1999). 106 (1971) 2 S.C.R. 446, ¶21. 107 Ibid., ¶41. 108 (1989) 2 S.C.R. 204. 109 Constituent Assembly Debates, Vol. III (29 April 1947), available at http:// parliamentofindia.nic.in/ls/debates/vol3p2.htm 110 The Representation of the People Act, 1951, §8(1)(a). 111 Edward Said, Culture and Imperialism (Vintage, 1994). 112 Virendra v. State of Punjab (1958) 1 S.C.R. 308, ¶14; but see a recent exception, Shreya Singhal v. Union of India (2015) 5 SCC 1. 113 Ibid. 114 The Unlawful Activities (Prevention) Act, No. 37 of 1967. §2(f)(ii). 115 Union of India v. Naveen Jindal, AIR 2004 SC 1559. 116 Bijoe Emmanuel v. State of Kerala (1986) 3 S.C.R. 518. 117 D.C. Saxena v. CJI (1996) 5 SCC 216. 118 R. Rajagopal v. State of Tamil Nadu, AIR 1995 SC 264. 119 376 US 254 (1967). 120 Viacom Media 18 Pvt Ltd v. Union of India, LPA 374/2013, CMs No. 8716/ 2013 (for stay) & 3187/2014.

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6 FREEDOM OF SPEECH IN THE EARLY CONSTITUTION A study of the Constitution (First Amendment) Bill Arudra Burra1

I On 12 May 1951, Jawaharlal Nehru moved Parliament to introduce a Bill to amend the Constitution of India. The Statement of Objects and Reasons spoke of “certain difficulties” which had been brought to light in the last fifteen months of the working of the Constitution, particularly with respect to the chapter on Fundamental Rights. In particular The citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom.2 The “difficulties” in question arose because of two Supreme Court judgements from March 1950 which had struck down “Public Safety” Acts in Madras and East Punjab on the grounds that they violated the fundamental right to freedom of speech and expression guaranteed in Part III of the Constitution.3 Art. 19(1)(a) guaranteed the fundamental right to speech and expression subject to exceptions set out in Art. 19(2), which originally read 19(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the 130

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State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. The question was whether the statutes in question related to any matter which “undermines the security of, or tends to overthrow, the State”. The Supreme Court construed the exception narrowly, as involving “nothing less than endangering the foundations of the State or threatening its overthrow”. It contrasted “serious and aggravated forms of public disorder which are calculated to endanger the security of the State” with “relatively minor breaches of the peace of a purely local significance”. The Public Safety Acts were held unconstitutional because they gave governments power to restrict speech in the interests of public order, even when these challenges would not be so grave as to undermine the security of the state or tend to overthrow it. These judgements were followed later that year by High Court judgements in Bihar, Madras and Punjab which applied the Supreme Court’s reasoning to strike down various sections of the Press (Emergency Powers) Act, 1931, as well as the provisions governing sedition (s. 124-A) and the promotion of enmity between groups (s. 153) of the Indian Penal Code.4 It was the judgement of the Bihar High Court which was alluded to in the Statement of Objects and Reasons. The case involved section 4(1)(a) of the Press (Emergency Powers) Act of 1931. Under s. 4 of the Act, authorities could require printing presses to furnish security deposits, which were liable to be forfeited in a range of conditions specified by s. 4(1). The first condition, s. 4(1)(a), allowed for forfeiture in case the press printed material which incited or encouraged the commission of murder or cognizable offences involving violence. Writing for the court, Justice Sarjoo Prasad noted that Cases may be conceived where the publication may relate to murders or offences involving acts of violence without any political motives and yet publications relating to such murders may come within the mischief of s. 4(1)(a) of the Act. Cases may be conceived where directly or indirectly murders or acts of violence of that kind may be approved or admired. Let us, for instance, take the case of an individual who is a terror in a particular locality because of his being the head of a gang of dacoits and robbers. The man may have been clever enough to escape the clutches of the law, yet the people in the locality are so tired of him that pamphlets or leaflets are published inciting his murder or assassination. 131

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It may also be that even after the man is murdered, the people of the locality or some of them may publish documents approving the conduct of the murderer. Evidently, these acts have been done not with any political motive, yet these publications come as much within the mischief of s. 4(1)(a) and (b) as any other publication relating to crime of a political character.5 If restrictions on speech could only be justified when it was such as to undermine the security of the state or tend to overthrow it – as the Supreme Court had held in Romesh Thapar – then the restrictions imposed by s. 4(1) (a) were unconstitutional: they restricted speech which did not have this effect, even if it went so far as to encourage murder. A month later, the Punjab High Court applied the same reasoning to the law on sedition.6 The Constitution (First Amendment) Bill sought to introduce three new exceptions in 19(2), covering public order, incitement to an offence and friendly relations with foreign states; it also sought to remove the qualifiers relating to undermining the security of the state or tending to its overthrow. The amending clause in the Bill as originally introduced in Parliament read as follows (words in boldface indicate the major changes sought to be made): 3. Amendment of article 19 and validation of certain laws. – (1) In article 19 of the Constitution – (a) for clause (2), the following clause shall be substituted, and the said clause shall be deemed to have been originally enacted in the following form, namely: – “(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, contempt of court, defamation or incitement to an offence.”7 Section 3(2) of the Bill sought to rehabilitate the laws which had earlier been struck down as because violative of Art. 19(2) as it was originally enacted: (2) No law in force in the territory of India immediately before the commencement of the Constitution which is consistent with the provisions of article 19 of the Constitution as amended by 132

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sub-section (1) of this section shall be deemed to be void, or ever to have become void, on the ground only that, being a law which takes away or abridges the right conferred by sub-clause (a) of clause (1) of the said article, its operation was not saved by subclause (2) of that article as originally enacted, and notwithstanding any judgement, decree or order of any court or tribunal to the contrary, every such law shall continue in force until altered or repealed by a competent Legislature or other competent authority. It should be noted that freedom of speech was only one of the concerns of the Constitution (First Amendment) Bill. In an attempt to safeguard zamindari abolition legislation from what the Statement of Objects and Reasons called “dilatory litigation”, the Bill sought to amend the right to property guaranteed by Art. 31 (Merillat 1970). The Bill also sought to amplify Art. 15(3) to explicitly empower the state to make “special provision for the advancement of any socially and educationally backward classes of citizens”. This was in response to a Supreme Court case which struck down caste-based reservations for government professional colleges in Madras on the grounds that these violated Art. 29(2) (Galanter 1985). Each of these three constitutional amendments was hotly debated in Parliament after the Bill was introduced on 12 May until its passage on 2 June. Substantive opposition aside, many opponents of the Bill claimed that it was too soon to amend the Constitution; others that it would be better to wait until the first elections under the new Constitution, which were only a few months away. The debates in Parliament were mirrored in critical commentary outside, much of it critical (Sethi 2015); at least one political party promised to overturn the amendment if it came to power in the general elections (Hindu Mahasabha 1951). When the First Amendment is invoked today it tends to be mentioned in passing, but usually in negative terms.8 Thus Pratap Bhanu Mehta seems to see in it as an instance of the Nehruvian State’s bad faith in the matter of civil liberties, or at least as an instance in which statism trumped freedom (Mehta 2015); more recently, Ramachandra Guha has claimed that its long-term consequences were regrettable from a free speech point of view, for it resurrected colonial laws which the Constitution had sought to remove, and allowed the Government a great deal of leeway in suppressing dissent and criticism without leaving the Courts much room to protect it (Guha 2016, p. 28). Lawrence Liang (2016) points out that the cases overturned by the First Amendment were “remarkable for their ability to distinguish between different levels of threat and impact in assessing speech in the post-colonial context” (p. 286); in earlier work (Liang 2004), he claims that the First Amendment “marked the rather premature end of the vision 133

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of a ‘seamless web’ with the promotion of national security and sovereignty being prioritised over the promotion of democratic institutions” (p. 439).9 In this chapter I attempt to tell a different story of the First Amendment, in connection with the debates on freedom of speech. I analyse the arguments presented for and against the Bill in the light of an analysis of the legal position resulting from the decisions in the CrossRoads and Organiser cases. I claim that this position was indeed untenable, and did require some kind of constitutional amendment – this much was eventually conceded by even the most bitter opponent of the Bill, Syama Prasad Mookerjee. I also argue that the need for an amendment introducing a “public order” exception in Art. 19(2) would have been recognised by the most influential members of the Constituent Assembly, and so in some important respects the amendment was not a huge departure from the initial constitutional scheme. Thus the Amendment need not be seen as an instance of highNehruvian statism. I conclude with the suggestion that we should be cautious about reading these debates in purely discursive terms, without also being sensitive to background political considerations.

II The Parliament which debated the First Amendment Bill was an unusual body. The Constituent Assembly was set up under the terms of the Cabinet Mission Plan of May 1946. While the Mission recognised that adult franchise would be the most satisfactory mode of election to the Assembly, it rejected this solution as unacceptably slow. It proposed instead that the Constituent Assembly be elected indirectly by the Provincial Legislative Assemblies, which had themselves been elected in the winter of 1945–46 under the terms of the Government of India Act, 1935 (25 & 26 Geo. 5), on the basis of a restricted franchise. The indirect elections to the Constituent Assembly were held in July and August 1946: of a total of 296 seats in the Assembly, 208 were held by Congress nominees, and 73 by the Muslim League.10 The inaugural session of the Constituent Assembly took place on 9 December 1946. In July 1947 the formal grant of Indian independence was proposed under the terms of the India Independence Act, 1947 (10 & 11 Geo. 6). The act gave the power of legislation to the constituent assemblies of each of the new Dominions.11 And so on 15 August 1947 the Central Legislative Assembly (which had been elected along with the Provincial Assemblies in 1945–46) was dissolved, and the Constituent Assembly assumed legislative powers – sitting as the “Dominion Parliament” in the mornings, and as the Constituent Assembly in the afternoons.12 After the Constitution was adopted on 26 January 1950 and India ceased to be a Dominion, the 134

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Constituent Assembly was dissolved, and the Dominion Parliament was now known as the “Provisional Parliament”.13 Its “Provisional” status was an indication of the fact that it had not been elected under the terms of the new Constitution of India. Since the first elections under the new Constitution were not held until the winter of 1951, it was the Provisional Parliament which debated the First Amendment Bill in May–June 1951. Though the Constitution granted Parliament broad amending power in Art. 368, critics of the First Amendment argued that this power should not be exercised by the Provisional Parliament. Since elections were around the corner, surely it would be better to wait for a new Parliament, elected under a universal franchise, to amend the Constitution. So the institutional status of the Provisional Parliament – the fact that it was provisional – was used to question the legitimacy of the First Amendment. On the other hand, as Nehru pointed out to critics who made this objection, the moral authority of the Provisional Parliament to amend this constitution was not in doubt: for until January 1950, it was the very same body, sitting as the Constituent Assembly, which had written the Constitution! Who better to interpret the constitution, and amend it when the Courts had shown themselves to interpret it incorrectly, than the very people who wrote the Constitution? This idea that Parliament had a special moral authority – derived not from its nature as a democratically elected body, but from the fact that most of its members had been part of the Constituent Assembly – was to be a major theme in the debates that followed.

III The statutes held void by the Courts in the 1950s consisted of sections of the Indian Penal Code (1860), the Press (Emergency Powers) Act, 1931, and “Public Safety” or “Public Order” acts passed by legislatures in Madras and East Punjab. Table 6.1 summarises the impugned acts and the cases in which they figured. Table 6.1  Relevant cases and statutes Madras Maintenance of Public Order Act, 1949 East Punjab Public Safety Act, 1949 Press (Emergency Powers) Act, 1931 Press (Emergency Powers) Act, 1931 Press (Emergency Powers) Act, 1931 Indian Penal Code, 1860 Source: Author

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Romesh Thapar v. State of Madras14 Brij Bhushan v. State of Delhi15 Amar Nath Bali v. The State16 In re Bharati Press17 Srinivasa v. State of Madras18 Tara Singh Gopi Chand v. The State19

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The Indian Penal Code, 1860 S. 124-A of the Indian Penal Code (1860), as amended in 1870, defined the crime of sedition. An offender under this section was one who “by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards Her Majesty or the Crown Representative”. The explanatory note to this section specified that “the expression ‘disaffection’ includes disloyalty and all feelings of enmity”. In the famous decision of Queen-Empress v. Bal Gangadhar Tilak (ILR 22 Bom 112, 1897) it had been held that the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. In 1942 the Federal Court of India sought to “read down” the interpretation of sedition so as to necessarily involve a crime affecting public order (Niharendu Dutt Mazumdar v. King-Emperor, 1942 F. C. R. 38). This interpretation was overturned by the Privy Council in 1947 in the case of Emperor v. Sadashiv Narayan (49 Bom, L. R. 526). Thus, at the time of the First Amendment, the law on sedition stood as it had been expressed by Justice Strachey in Tilak’s case. In addition to s. 124-A, the Indian Penal Code also made it an offence to “promote enmity” between different groups, on grounds of religion, race, place of birth, residence and language (s. 153-A). Both sections 124-A and 153 -A of the Indian Penal Code were invalidated in the decision of the Punjab High Court in the case of Tara Singh Gopi Chand v. The State (AIR (38) 1951 Punjab 27), decided in November 1951.

The Press (Emergency Powers) Act, 1931 The preamble to the Indian Press (Emergency Powers) Act (Act XXIII of 1931) proclaimed that it was “An Act to provide against the publication of matter inciting to or encouraging murder or violence”.20 It was enacted in October 1931, at the height of the Civil Disobedience movement, and the statement of objects and reasons made it clear that it was regarded as a tool against that movement. It read Experience has shown that propaganda in furtherance of subversive movements and of crimes of violence is carried on by newspapers, leaflets, pamphlets, bulletins and the like. 136

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The Act gave the Government a great deal of power with respect to press censorship. The principal weapon in this regard was the power to require owners of printing presses and newspapers to furnish security deposits on the basis of executive judgement. These could be forfeited if the press or newspaper published material which met the criteria set down in s. 4 of the Act; if security deposits had not been paid, the printing press could itself be forfeited on such grounds. The Act also empowered the executive to declare all such material forfeited to the Government. Initially s. 4 specified that these penalties were applicable to printing presses which were used to produce material which could incite or encourage violent crimes such as murder (s. 4(1)(a)), or express approval or admiration of such offences (s. 4(1)(b)). In 1932 the Press Act was amended in ways which made the links between press censorship and the suppression of the nationalist movement even more explicit.21 The Statement of Objects and Reasons to that Act acknowledged that these amendments to the criminal law were necessitated by the Civil Disobedience Movement, and claimed that “it is no difficult matter to start or revive such subversive movements” in the absence of the special powers it proposed to add to the existing criminal law. The Act added a variety of new grounds for the forfeiture of security deposits, some of which mirrored the Indian Penal Code – for instance s. 4(1)(d) allowed for forfeiture in the case of publications tending to excite disaffection or bring the Government into hatred or contempt, while s. 4(1)(h) applied to publications which tended to “promote feelings of enmity or hatred” between different classes. Other provisions were more directly targeted at civil disobedience: s. 4(1)(f) referred to publications which encouraged people to interfere with the administration of the law, or to refuse payment of taxes; s. 4(1)(g) covered publications which induced public servants to resign or to refuse to perform actions connected with their public duties. Section 4(1)(h) was struck down by the Punjab High Court in the case of Amar Nath Bali v. The State (AIR (38) 1951 Punjab 18) in September 1950. Sections 4(1)(a) and (b) of the Press Act were struck down by the Patna High Court in the case of Bharati Press (AIR (38) 1951 Patna 12) in October 1950. The following month, the Madras High Court struck down sections 4(1)(a) and 4(1)(d) of the Press Act in the case Srinivasa v. State of Madras (AIR (38) 1951 Madras 70).

Public safety acts The sedition clause of the Indian Penal Code and the Press Act were both colonial laws clearly aimed at frustrating nationalist ambitions. This is why 137

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there was substance to the charge, frequently made during the First Amendment debates, that the Government was trying to rehabilitate laws which had been used to suppress the movement for Indian independence. This was not true, however, of the two statutes which were at issue in the Supreme Court cases of Romesh Thapar and Brij Bhushan, the Madras Maintenance of Public Order Act, 1949, and the East Punjab Public Safety Act, 1949. These did not originate in the colonial state, but were enacted after Indian independence in 1947: similar legislation had been enacted in several other provinces such as Assam, Bengal, Bihar, UP and the Central Provinces following the formation of the Interim Government in September 1946. These “Public Safety” Acts had begun as ordinances crafted to deal with serious communal riots, and were later passed as temporary emergency legislation (Press Laws Enquiry Committee Report (1948)). Thus the focus of these statutes shifts from “disaffection”, “disloyalty” and incitements or inducements to disobey the law, to more generic problems having to do with “public safety” and “the maintenance of public order”. These Acts were not aimed at preventing or combating expressions of opinion against the state (which was now Indian): the worry was now with respect to expression which could lead to communal violence, as in the post-partition riots.22 These Public Safety Acts did not impose criminal or civil penalties on speech but nevertheless gave the Executive a great deal of power. Whether or not a publication is such as to pose a danger to public safety or public order is a matter much more open to discretion (and therefore discretionary abuse), than, for example, whether or not it incites people to disobey the law. The forms of press control they allowed included pre-censorship (as in Brij Bhushan) or complete blocks on circulation (as in Romesh Thapar). This degree of continuous interference with the process of publication was absent in the Press Act and the Indian Penal Code. This concern with communal violence is reflected in the nature of the cases themselves: Brij Bhushan involved the Organiser, organ of the Rashtriya Swayamsevak Sangh (RSS). The articles in question had to do with the East Bengal disturbances of 1950, which led to anti-Muslim riots in Calcutta, and might have brought India to the brink of war with Pakistan (Burra 2016a, 2016b; Raghavan 2010, pp. 149–184). In Amar Nath Bali, the offending publication was a book entitled Now It Can Be Told, an account of partition riots which blamed much of the anti-Hindu violence in Punjab on administrators who displayed a partiality to Muslims, including M. G. Cheema, Magistrate of Lahore, who “took upon himself to be another Mahmood of Ghazni, out to smash the temple of Somnath of the Lahore minorities [i.e. Hindus and Sikhs]” (p. 29). The Akali leader Master Tara Singh wrote an appreciative foreword to Now It Can Be Told, and one can fairly surmise that the speeches for which he 138

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was prosecuted in 1950 also touched upon communal issues with possibly violent implications.23 Fear of communism, and in particular the Telangana uprising, was of course another animating motif behind the prosecutions of 1950 and the enactment of the First Amendment; the cases of Romesh Thapar and Srinivasa Bhat both concerned communist sympathisers. But on the whole I suspect this was a lesser fear, at least for leaders like Nehru. In July 1951 he wrote to Rajagopalachari that I have no doubt that the Communist Party have been guilty of atrocious crimes and that we have to deal with it as such. Nevertheless, I feel that certain communal elements in India are far more dangerous to our unity and to any progress that we might hope to make, than the Communists. The Communists could never have brought about a situation which existed in Punjab or in Delhi in August – September – October 1947. (Sethi 2015, p. 28)

III By the time Nehru introduced the First Amendment Bill in Parliament, it had already been discussed for several months – within Government, in the Cabinet, with Chief Ministers, in the Congress Parliamentary Party and in the public.24 In his initial speech on the motion to refer the Bill to a Select Committee (Parliamentary Debates 1951, cols. 8814–8832), Nehru noted that the Bill had already received a fair amount of criticism, both in India and abroad.25 One criticism has already been noted: opponents claimed that the Provisional Parliament did not have the authority to amend the Constitution because it had been elected on a narrow franchise and didn’t represent the will of the community. Nehru’s response invoked a claim to original authorship over the Constitution: Now, there is no doubt that this House has that authority. There is no doubt about that, and here, I am talking not of the legal or constitutional authority, but of moral authority, because it is, roughly speaking, this House that made the Constitution. We are not merely technically the inheritors of the fathers of the Constitution. We really shaped and hammered it after years of close debate. (PD col. 8816) Nehru’s case for amendment did not involve criticism of the judiciary. The claim was not that the Courts had incorrectly interpreted the 139

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Constitution; rather, the decisions had revealed certain “drafting errors” or lacunae already present in the Constitution which were now to be corrected. As for the role of the Courts, [S]o far as the interpretation of the Constitution is concerned, it is the right and privilege of the highest courts of the land to do it, and it is not for us as individuals or even as a Government to challenge that right. The judiciary must necessarily stand above, shall I say, political conflicts and the like, or political interpretations. They have to interpret it in the light of the law and with such light as they can give to it. (PD col. 8816) Nevertheless, the question was whether the Constitution as interpreted did in fact give effect to the intentions of its framers, and here it was important to take the assistance of the House in “clearing up doubts” as to what those intentions were (PD col. 8817). In principle this process might have gone through the judiciary itself, had there been more time for the Courts to soften “the written word in all its rigid aspects” and give effect to “the many inner meanings which we sought to give to it” (PD col. 8818). It was only because the times were changing so rapidly that Parliament had to step in – rather than wait for a “generation or two” for the proper conventions to develop (PD col. 8829). But both in the case of incitements to offence and land reform, there was simply no time to be lost. The contrast between the “static” nature of the legal process and the dynamic nature of the world around was to be a major feature of Nehru’s subsequent case for the Amendment throughout the debates. It was also a clever rhetorical device. After all, the Bill did decisively overturn the judgements of the Supreme Court and High Courts; yet Nehru could argue that in doing so he was not undermining the institutional authority of the Courts at all. The claim, rather, was made in terms of relative institutional competence having to do with lawyers and the nature of the law itself: [A] lawyer represents precedent and tradition and not change, not a dynamic process. Above all, the lawyer represents litigation. . . . Somehow we have found that this magnificent Constitution that we have framed was later kidnapped and purloined by the lawyers. (PD col. 8832) The point was especially artful because his opponents were only claiming that considerations of the Bill should be postponed until after elections to the Lok Sabha or, even more mildly, that the Bill should be circulated 140

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to the public for comments before taking it up again in a few weeks.26 But delay in considering the Bill, even by a few weeks, could be here conflated with a desire to slow down the pace of social change altogether, or with paying insufficient attention to the rapidly changing nature of the world. Allied with the argument from institutional dynamism there was in fact also a clever argument about institutional authority. It was not, Nehru said, that he begrudged the fact that the Constitution had become “a paradise for lawyers”: what he did object to was “the shutting of the door and of barring and bolting it and preventing others from coming in” (PD col. 8832). Opponents of the Amendment were effectively opponents of democracy itself, in effect betraying the aims of the independence movement: It is only here we seem not to rely on ourselves, not to have faith in ourselves, in our Parliament or our Assemblies, and rely, just as some of us may have relied on external authority like the British power of old days; we rely on some external authority – maybe geographically internal – and not perhaps have faith in this Parliament. (PD col. 8825) This form of an argument from “colonial continuity” was also to play an important part in the rest of the debate, with many people reminding the Government that the arguments in favour of the Bill had also been made by the British to justify repressive rule during the Raj, and the laws resurrected by it had also been used to crush dissent at the time.27 On the substance of the amendments themselves, Nehru made three points. First, he claimed that the Bill was only an “enabling” measure – the Bill merely gave Parliament the authority to enact laws which might constrain freedom of speech; it did not itself enact any such laws, and nor was it likely to do so in the short time left before the General Elections (PD col. 8818).28 And so he repudiated the suggestion that the enactment of the Bill cleared the way for the misuse of state power in the context of the forthcoming elections. If at some later point in time the Government then in power did attempt to curb freedom of expression by enacting repressive legislation, that would be the appropriate moment for Parliament to discuss the issue (PD col. 8828). Nehru also attempted to rebut the charge that the Government was trying to curb freedom of the press. Here he made a distinction between “responsible” and “less responsible” journals, the latter of which were “full of vulgarity and indecency and falsehood, day after day, not injuring me or this House much, but poisoning the mind of the younger generation, degrading their mental integrity and moral standards” (PD col. 141

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8823). While press of the responsible kind was essential to the functioning of democracy, the “little sheets that come out from day to day and poison or vitiate the atmosphere” were another matter. While on balance it was better to allow them to function rather than not, it was important to have the power to curb them if the need arose – particularly in the present state of deep crisis (PD col. 8826). Nehru’s discussion of the new clauses sought to be introduced by the Bill – governing friendly relations with foreign states, public order and incitement to an offence – was relatively brief. On the first clause, Nehru argued that his Government was not at that point contemplating the stifling of criticism of foreign countries, but “we cannot easily take on the risk when something said and done, not an odd thing said and done, but something said and done repeatedly and continuously, may lead . . . to our relations with that foreign country deteriorating rapidly” (PD col. 8827).29 With respect to public order and incitement to an offence, the rationale for introducing the clauses came from the High Court judgement mentioned in the Statement of Objects and Reasons, which held that the Constitution as then interpreted would permit the preaching of murder and like offences (8828). While Nehru acknowledged the danger of executive overreach and abuse, he claimed that the proper time to discuss these dangers would be as and when actual speech-restrictive legislation came before Parliament. Nehru’s opening speech covered the main themes which were to be discussed at length in the ensuing debates: the propriety and legitimacy of Constitutional amendment in the first place; the proper relation between Parliament and the Courts; the nature and value of free expression and the justification for the particular clauses in the Bill. Before moving on to consider the arguments of his critics, it is useful to compare his arguments in favour of the Bill with those provided by two other major figures – Pandit Thakur Das Bhargava and Dr B. R. Ambedkar. If Nehru had opened the door to an argument by authorial intention – that the amendment sought to clarify the original intention of the Constituent Assembly – it was left to Thakur Das Bhargava to make the historical case, one which he was well placed to do given his own participation in the debates around fundamental rights in the Assembly. Bhargava began by reminding the House of the legal position which the Supreme Court judgements, as finally interpreted in the case of Master Tara Singh, had left the Government: So the present position is that every person in the land is at liberty to preach disaffection against the Government. Every person in this land is at liberty to sow seeds of disaffection and enmity 142

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between different classes living in this country. This attempt can go on as long as the last words in this clause are not satisfied, viz., “which undermines the security of, or tends to overthrow, the State.” I maintain that there is no civilized country in the world with a written or unwritten Constitution which is not armed with provisions relating to sedition or to meet situations as lead to public disorder which are presently outside the purview of these last words. (PD col. 8869). Bhargava reminded the House that the Constituent Assembly had moved to delete the word “sedition” from among the provisos to the free speech clause, because the word was “obnoxious”, and it was a reminder of the repressive use of these laws by the British – though as he pointed out, there had not been at the time much discussion of this point (PD col. 8871). While the offence of sedition understood as the preaching of disaffection surely had no place in a democracy (PD col. 8871), sedition understood as an offence of creating public disorder surely did. The law of the country was now deficient, he claimed, because of us, because in the Constitution we did not take full care to see that the words are as a matter of fact there which could enable the Government to make whereby public order could be maintained. (PD col. 8874) The “mistake”, he suggested, was to have removed “sedition” without replacing it with an equivalent phrase to cover public order (PD col. 8886).30 While Bhargava was thus in favour of amending the Constitution, he thought the amendments proposed were “too vague, too wide and too drastic and too unbridled” (PD col. 8887). The restrictions involving friendly relations with foreign states and public order were vague, the latter so wide that is was “unheard of even in the history of the British regime”. And the term “incitement to offence” was not defined at all. Indeed, the term “offence” was itself not clearly defined: under the Factory Act, for instance, spitting in a place not prescribed was considered an offence (PD col. 8887). Bhargava’s biggest problem with the amending Bill, however, lay in the fact that the scheme of Article 19(2) by its very nature gave an “absolute” power to make laws, because once a law was found to fall under one of the enumerated restrictions, no further enquiry could be made into the propriety of the law itself.31 He suggested that the clause specify that any such 143

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restrictions would have to be “reasonable”, as they were in the other Article 19 rights. This alone would make them justiciable and give Courts the ability to protect people from their infringement (PD cols. 8886–7). Finally, Bhargava questioned the propriety of giving the Amendment retrospective effect (PD col. 8890). Like Nehru, Bhargava was careful to claim that he was not criticising the Courts; he claimed that the Punjab High Court had decided Master Tara Singh’s case correctly in the light of the Constitution (PD col. 8868). It was left to the Law Minister, Dr B. R. Ambedkar, to mount an attack on the Courts themselves. In describing the Champakam judgement striking down reservations as “utterly unsatisfactory”, he reminded the House that in his legal practice he would sometimes tell judges that he was bound to obey their judgements but not bound to respect them (PD col. 9006–7). The criticism of the free speech cases was more muted, but nevertheless firm: the Courts had declined to read into the Constitutional text the doctrines of “police powers” and “implied powers” which had been developed by the US Supreme Court to frame limitations on the free speech clause of the US Constitution despite the fact that it was stated in absolute terms.32 Thus, even though the Art. 19 clause was framed in large part on the model of the American Constitution, the Indian Courts had declined to follow the interpretive practices of the US Supreme Court. This was why they were unable to make the necessary adjustments. Ambedkar suggested obliquely that he did not quite understand the reasoning of the Courts in denying to recognise the doctrine of police powers, and claimed that the Constitution did in fact permit the recognition of implied powers (PD col. 9013–4). Ambedkar’s intervention came on the third day of the debate, after a number of trenchant criticisms had already been made by opponents of the Bill – a diverse group including Syama Prasad Mookerjee, H. V. Kamath, and Hriday Nath Kunzru. Of these Mookerjee’s was the strongest. Speaking just after Nehru’s initial speech introducing the motion, Mookerjee said that he was perplexed why someone who had been a “champion of liberty” all his life should now undertake an amendment which he must know in “his heart of hearts” would strike at the very roots of the Constitution: I do not know why he has thrown up this challenge. Is it due to fear? Does he feel that he is incapable today to carry on the administration of the country unless he is clothed with more and more powers to be arbitrarily utilised so that his will may be the last word on the subject? Or is it his doubt in the wisdom of the people whose champion he has been all his life? Does he feel that the people of India have run amuck and cannot be trusted with 144

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the freedom that has been given to them? What is it that he has in his mind? (PD col. 8838) Where Nehru had suggested that opponents of the Bill did not fully trust Parliament, Mookerjee reversed the charge. It was Nehru who did not trust Parliament, because he was not giving its members full liberty to decide the question – Mookerjee claimed that Nehru was treating this as a “party matter”, having issued a party whip which instructed all members of the Congress to be present and vote for the Bill without moving any amendments (PD col. 8839). Mookerjee also resisted Nehru’s attempt to frame the Supreme Court as an alien institution (an “external authority”) which represented some reactionary element somehow opposed to the spirit of the Constitution: Here are a set of men who are selected by the Government. They are not foreigners coming from outside. They are our own chosen selected men holding office during their life, entrusted with the duty of seeing whether the country is being administered in the spirit of the Constitution. (PD col. 8855)33 It was the clause governing “friendly relations with foreign States” that drew Mookerjee’s greatest ire. He took his own views on Pakistan to be one potential target: Why should you pass such a law? I do not know whether it relates to the demand which is made in certain quarters about a possible reunion of India and Pakistan. I know the Prime Minister holds very strong views about it and he has said a number of times that any such movement or agitation is harmful to the interests of the country and that he does not like it. I do not mind it: it is his view. But if I hold the contrary view as indeed I do most seriously and earnestly, that this partition has been a mistake and has to be annulled some day or other why should I not have a right to say that? . . . Why should I not have the right to agitate for it? Pandit Jawaharlal Nehru as the leader of a big political party may oppose this view. He can appeal to his countrymen not to listen to those who today are advocating an annulment of the Partition of India. I can understand that: it will be an appeal to the logic and the goodsense 145

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[sic] of the people. That is a perfectly constitutional approach to the problem. (PD col. 8847) The position articulated was a classically liberal one: If he says as the head of the Government that he is prepared to allow any viewpoint to be circulated within the country – and that is what we understand by democratic freedom – so long as it does not advocate chaos, I would be at one with him. If he says that because he does not like that anybody should speak about the annulment of the partition he means to prevent us and therefore wants to put these words in the Constitution and later pass some law consistent with them, then I say it is most arbitrary and if done, will lead to very serious consequences. (PD col. 8847)34 Between Mookerjee and Ambedkar a number of other people spoke forcefully against the Bill. These included H. V. Kamath (PD cols. 8909– 8924), who called it a bit of “midsummer madness” to pass the Bill in such a hurry without extensive public discussion: it would give the impression that the Government – already armed with extraordinary powers through the Preventive Detention Act – was doing so solely with a view to making things smooth for the Congress in the upcoming elections. Pandit Hriday Nath Kunzru (PD col. 8896–8904) also opposed the Bill, arguing that Nehru’s claim that the Bill was merely an “enabling” measure was deceptive, because it already made individuals less secure in their liberties, since they would no longer be protected against “the tyranny of changing Parliamentary majorities in the future”. By the time Nehru rose to reply (PD cols. 9069–87), opposition to the Bill had thus been articulated in a number of different registers, by voices representing a range of different political interests.35 Nehru began on a combative note, claiming that those who opposed the Bill had either not understood it or deliberately tried to misunderstand what it contained; some of the opposition speeches had the air of “play-acting”. Syama Prasad Mookerjee, in particular, had fallen into the habit of connecting any issue (“whether it relates to the stars or this earth”) with that of partition and Pakistan; but the Bill had nothing to do with either. The “foreign relations” clause was justified on the grounds that it might sometimes be necessary to curb actions which might lead to war. Fears about executive overreach and misuse were appropriate when Parliament was enacting laws which gave specific powers to the executive: but 146

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the First Amendment Bill did not give the executive any new powers, and no such law was then being contemplated.36 Given the government’s majority in the House, there was no question that the motion to refer the Bill to the Select Committee would pass in its original form, i.e. without any delays for public consultation as many of its opponents had requested. It was instructed to submit a report within five days, on the 23rd of May; this was later extended by two days.

IV Both Nehru and Ambedkar had been conciliatory about how exactly to frame the speech clause, for instance with respect to the vague category “offence”, claiming that this was a matter for further discussion in the Select Committee. H. V. Kamath was cynical, claiming that there was a ploy to deliberately leave open a lacuna which the Select Committee would change, thus feeling satisfied that it had changed the Bill, and “lay[ing] the flattering unction to their soul that after all they have done something” (PD col. 8914). Whether or not Kamath’s charge was justified, the Select Committee did in fact alter the Bill significantly, adopting the suggestion made by Thakur Das Bhargava and others to add the term “reasonable” before the term “restrictions” in Art. 19(2). As amended by the Select Committee, section 3 of the Amended Bill now read 3. Amendment of article 19 and validation of certain laws. – (1) In article 19 of the Constitution – (a) for clause (2), the following clause shall be substituted, and the said clause shall be deemed to always to have been enacted in the following form, namely: – “(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, including, in particular, any existing or other law relating to, contempt of court, defamation or incitement to an offence.”37 The composition of the Select Committee was interesting. Apart from Nehru, Ambedkar, Rajagopalachari (then Home Minister) and Satya Narayan Sinha (Minister for Parliamentary Affairs) on the Government side, and a range of Congress stalwarts, it included some of the Bill’s severest critics (Mookerjee, Kunzru and Naziruddin Ahmad), as well as other 147

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members (Hukam Singh, K. T. Shah, R. K. Sidhva) who were generally sceptical of the “Congress-line”, and had played an important role in voicing civil liberties concerns during the debates over fundamental rights in the Constituent Assembly.38 Though they acknowledged the importance of inserting the term “reasonable”, many of the critics continued to have reservations which they expressed in notes of dissent.39 G. Durgabai expressed the worry that the amended right could be abused by state legislatures, and so wished to give Parliament the exclusive power to restrict fundamental rights. Kunzru claimed that Government had failed to make a “clear and convincing” case for the amendments, and criticised the Government for not even being able to provide a list of the laws which the judicial decisions had rendered void; this complaint was echoed by Mookerjee as well as Naziruddin Ahmad, who complained in a separate note about the lack of time available for deliberation – he had not even been given time to see the actual text of the Bill by the time he had to write his minute of dissent. Mookerjee argued that the Government had made no effort to revise the “repressive and retrograde” laws formulated under the old regime, but had adopted the “strange procedure” of adhering to these “lawless laws” and altering the fundamental rights in order to save their validity. He acknowledged the possibility that an amendment might be needed in order to cover incitement to violence; if the term “public order” was to continue, he argued, it must be subject to the “clear and present danger” test of the US Supreme Court. And he concurred with Durgabai’s view that laws restricting fundamental rights should be framed only by Parliament, and not by Court legislatures. While the tone of his dissenting note was much less strident than that of his speech in Parliament, it nevertheless ended on a defiant note, claiming that if the Government found some judicial interpretations not to its liking, “A better and more honourable course would have been not to have a written Constitution at all and make Parliament the supreme body” (p. 9). K. T. Shah, Naziruddin Ahmad and Hukam Singh acknowledged that Parliament had the “technical” competence to pass the Bill, but said they had grave doubts about the “wisdom, the propriety, and the justification” for the Bill. The claim that the Provisional Parliament was the proper descendant of the Constituent Assembly was itself dubious: it was a “materially different body”, whose membership had changed significantly since 1950; perhaps not even a majority of members in the Provisional Parliament had in fact been members of the Constituent Assembly. They reiterated the complaint that the Parliament was now functioning “in the full sway of the Party machine”; in the Assembly, by contrast, party whips and instructions were “wisely kept out” (pp. 8–12). 148

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V The Select Committee produced its report on the 25th of May, and Nehru moved a motion to consider it on the 29th. The reason why the word “reasonable” had not been put in sooner was not, he said, “that we wished to avoid the courts coming into the picture to give their interpretation”; rather, it was “to avoid an excess of litigation about every matter”, which would not only hold up the working of the State, but produce “mental confusion” in people’s mind, at a time when such confusion might do “grave injury” to the state (PD col. 9623). Nehru continued to stress the importance of approaching the Constitution in a “dynamic” spirit. But the target here was not the “static” Courts, but the fears of members of Parliament that they were tampering with the Constitution so soon after it had come into force: A Constitution must be respected if there is to be any stability in the land. A Constitution must not be made the plaything of some fickle thought or fickle fortune – that is true. At the same time we have in India a strange habit of making gods of various things, adding them to our innumerable pantheon and having given them our theoretical worship doing exactly the reverse. If we want to kill a thing we deify it. That is the habit of this country largely. So, if you wish to kill this Constitution make it sacred and sacrosanct – certainly. But if you want it to be a dead thing, not a growing thing, a static, unwieldy, unchanging thing, then by all means do so, realising that that is the best way of stabbing it in the front and in the back. (PD col. 9624) This second round of debate introduced another element into the discussion. By 1951 at least some of the initial optimism about independence had dimmed: government abuse was not an abstract possibility, but for some a concrete, disappointing reality in the current regime. This was the basis for Acharya J. B. Kripalani’s attack on the Bill. Kripalani had been the chairman of the Fundamental Rights Committee in the Constituent Assembly, and was now critical of the changes contemplated in Parliament. Discussing the “public order” exception, he noted: We know how public order is disturbed in this country under the present regime. If a procession is taken out public order is disturbed. If some students want some facilities in their schools and colleges, public order is disturbed. If there is a hunger-march and 149

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people want food, public order is disturbed. When public order is thus disturbed, what do the Government do. They have ample powers. They use the police. Our police are very good at shooting. They shoot to kill. (PD col. 9723) The point was twofold. Not only did the present government misuse executive discretion in its handling of what it called “public disorder”: More importantly, allowing the state to criminalise certain forms of protest obscured the fact that much of this protest was legitimate, a democratic response to failed governance. The trouble was that the Government wanted powers to tackle the “agitator”. But as Kripalani put it, “The agitator is not the trouble but the trouble is the conditions in this country. Improve those conditions and all the power you want we will give you” (PD col. 9729). Another new voice in the debate was that of C. Rajagopalachari, who had taken over as Home Minister after Sardar Patel had passed away at the end of 1950. He reiterated the “lacunae” argument made by Nehru. The right to freedom of expression was, as he put it, a natural right, not like “a right given in a clause or lease or an insurance policy, to be enforced like Shylock’s pound of flesh, according to the letter of the law”. The content of this right simply did not include, for instance, the freedom to incite murder. The fact that the language of the Constitution permitted – even mandated this interpretation – was a reason to clarify it (PD col. 9761). Rajagopalachari also made an ingenious point with respect to the charge of colonial continuity. One of the primary charges made against the amendment with respect to “incitement of offence” and “public disorder” was that it would lead to the penalisation of forms of non-violent protest that had formed the moral basis for the independence movement. Thus Kripalani had said What is not an offence? As a matter of fact, during all our struggle we were preaching against what was considered by the State laws as offences. The whole of our satyagraha movement was to break the law, to break such provisions of the law that created offences. Today, if you pass this amendment, even satyagraha can come to be legislated against. (PD col. 9722) Rajagopalachari’s response was that the whole point of civil disobedience conceived of as a form of protest was that it should be punished: it was the acceptance of the penalty which gave such protest its moral force. So to the 150

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extent that such a form of political agitation was worth preserving, it was important to allow it to be punished. To do otherwise would be like “trying to learn to ride on a wooden horse. It must be a real horse; it must kick and throw out” (PD col. 9765). In addition to Rajagopalachari, speeches in favour of the Bill were made by Rev. D’Souza (who argued that comparisons with English political precedent ignored the “phlegmatic English character which is not easily ruffled and does not respond to incitement”, PD col. 9692), Thakur Das Bhargava, S. N. Mishra, D. D. Pant, Dr Deshmukh and Frank Anthony. Anthony made the startling claim that his support for the Bill rested on a suspicion of democracy. He was prepared to grant Jawaharlal Nehru “blanket powers” to prevent a later dictatorship of the proletariat; but this support rested on his trust in Nehru himself. He was not prepared to give these blanket powers to “every Tom, Dick and Harry in the political field”, but he did want it frankly acknowledged that the amendments were not merely a clarification of original intent, but a radical change from the original article (PD col. 9789). Apart from Kripalani, the voices speaking against the Bill were by now familiar – K. T. Shah, Naziruddin Ahmad, Syama Prasad Mookerjee, Deshbandhu Gupta and Kunzru; though of course their opposition was to some extent blunted because of the introduction of the term “reasonable”. The motion passed on 31 May with a margin of 246 to 14.40

VI The stage was now set for the clause-by-clause discussion of the Bill on the June 1. The debate on the Art. 19(2) exceptions in clause 3 of the Bill was brief, and covered familiar ground – it was passed by a majority of 228 to 19.41 There was an interesting exchange at this stage between Mookerjee on the one hand and Ambedkar and Rajagopalachari on the question of “incitement to an offence”. In his earlier intervention on the Bill Rajagopalachari had suggested that the scope of this clause should go beyond crimes of violence – for instance theft or black-marketing: once an act was criminalised, one should also criminalise its encouragement or incitement (PD col. 9762). Mookerjee now suggested that this would allow the state to prevent people from arguing against Prohibition in areas where it was in force – indeed the Supreme Court had recently struck down sections of the Bombay Prohibition Act for precisely that reason (PD, cols. 9855–9857). In the earlier debate Rajagopalachari had pointed out difficulties in defining the term “violence” and introducing it into the law. How was the term to be defined in the first place? Gandhiji, after all, used the term in “a free way”, to cover many acts which did not involve bloodshed (PD col. 9768). 151

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Now Ambedkar extended the point. Was “violence” to apply only to physical violence? On such a narrow reading, it would not be possible to pass a law, e.g. punishing calls for social boycotts of Scheduled Castes. Absent a definition of violence, it was unclear whether “incitement to violence” would cover, for instance, a case in which caste Hindus called on some of their men to poison the drinking water in a well from which members from a Scheduled Caste had drunk (PD col. 9868). For these reasons it was better to leave the definition open (see Menon 2004 for discussion). The final reading of the Bill was held the following day, June 2, and began with a long speech by Shibban Lal Saksena which summarised the case against the Bill. In the short space of two hours there was not much scope for further debate, and in any case the issues had been discussed “threadbare”, as the Speaker put it, in the last few weeks. Syama Prasad Mookerjee made the final case from the opposition, and reiterated his charge that instead of asking the people to trust the Government, the Government should trust the people: The answer to this present attitude of discontent in the midst of the people can only be fruitfully given, if Government approaches the problems constructively. It must enter the minds and hearts of the people and not intensify the fear of repression, through Bills, creating new offences and sending them to jails. How many jails would be needed for this purpose in the whole of India? (PD col. 10091) The last word, however, was with Nehru. It was an uncharacteristically aggressive speech – he called the Bill’s opponents “petty critics” who seemed to “live in some distant age”, who lacked a grip on reality, and were stunting the growth of the country by their narrow-mindedness (PD 10096). Anyone who claimed that the amendments curbed the liberty of the press was simply lying, according to Nehru, and had to be challenged, “here, in the country, and everywhere”. He concluded on a lofty note: At any rate, I welcome this debate, not because of its intimate connection with these issues, but because it is good for us to talk about great matters, about the freedom of the Press and the freedom of the people and to educate ourselves and our people in the process. Unfortunately, our politics in this country gradually drift away from great public debate: it is becoming or tends to become a parlour variety of debates. That is a bad thing for democracy. Let us have great debates on a high level, let us discuss the bearings of

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each problem and then come to decisions, so that the public may know our minds. Therefore, although this particular issue did not to my thinking raise these grave issues, nevertheless I have welcomed this great debate, because it has been good for us generally. (PD col. 10103) This Bill as a whole was passed with a majority of 228 to 20.42 Though Rajendra Prasad had his doubts about the advisability of assenting to it, it became law on 18 June, as Act 37 of 1951.43

VII As I noted in the Introduction, contemporary discussions of freedom of speech in India tend to see the First Amendment in a negative light. Is this a fair assessment? I would argue not: I think a good case could be made for Ambedkar’s claim that Romesh Thapar and Brij Bhushan were wrongly decided on grounds of statutory interpretation, though I cannot argue that point here.44 But even if they were correctly decided given the Constitutional text, it seems clear that Shailabala Devi and Tara Singh had left a constitutional void of the kind described by Thakur Das Bhargava. No civil libertarian has ever denied that the state may sometimes curb speech in the interests of public order.45 The Supreme Court’s interpretation of Art. 19(2) would not allow such restrictions unless the law in question was directed at undermining the foundations of the state. This would exclude a large range of cases in which restriction would surely be appropriate. Even Syama Prasad Mookerjee acknowledged in his dissenting note in the Select Committee (1951) that the original constitutional limitations did not cover incitement to violence (p. 6). Those who opposed the “public order” clause worried about overbreadth but didn’t dispute the necessity of giving the executive some powers to restrict speech on grounds of public order. For instance, both Mookerjee and Kunzru claimed that the Preventive Detention Act gave the Government sufficient powers to do so (PD col. 8842). Indeed, I suspect Nehru was correct in arguing that the Amendment (at least without the “foreign relations” clause) was an expression of the original intent of the framers of the Constitution. Of the twenty-one “most important” figures in the Constituent Assembly listed by Austin in (1966, pp. 420–432), ten voted on the Art. 19(2) amendment, nine of them in favour of it: Nehru, Ambedkar, K. M. Munshi, M. A. Ayyangar, Shankarrao Deo, G. Durgabai, T. T. Krishnamachari, H. C. Mookerjee and

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Satyanarayan Sinha; J. B. Kripalani was the sole opponent.46 At least four others on the list would have been in favour of the amendment, even if they were not in a position to vote: Alladi Krishnaswami Ayyar, B. N. Rau, Sardar Patel and Govind Ballabh Pant.47 Once we add Rajagopalachari to that list, I think it is fair to say that this galaxy of stars would have made sure to have included a public order exception in the original Constitution had the issue come up. I cannot argue the point here, but I think that Thakur Das Bhargava was correct in arguing that the omission of the term “public order” was simply an oversight caused by the failure to note that the problems which would be created by deleting the term “sedition” from the final draft.48 If this analysis is correct, then much of the recent criticism of the First Amendment by scholars such as Guha, Liang and Mehta misses the point. Indeed, one needn’t see the introduction of the term “reasonable” as in some ways only partially making up for the introduction of essentially undemocratic exceptions to Art. 19(2). The open invitation to judicial review of speech-restrictive statutes might be seen instead as a radical move in favour of diluting executive power, one which placed the onus of developing a constitutional jurisprudence of free speech squarely on the Courts in a way that was not envisaged during the Constituent Assembly Debates. Given the Congress majority in Parliament, Nehru’s government could easily have forced through the Amendment in its original form. That it chose not to do so requires some serious analysis: at the very least, it makes it harder to sustain the charge that the Amendment was an instance of high Nehruvian statism. Indeed, the term “Nehruvian” may be doing more work here than it should. When commentators take the introduction of the term “reasonable” as a “partial defeat” for Nehru (Liang 2004), or as an instance in which Nehru had to “bow to the wishes of others” (Chandran 2016), they have in mind presumably a letter from Nehru to T. T. Krishnamachari describing his reluctance to introduce the term (Austin 1999, p. 47). But Austin also reports (p. 45) that the Cabinet Committee on the Amendment was against the introduction of the term “reasonable” in March 1951, and Deshbandhu Gupta claimed in Parliament that Rajagopalachari had taken some convincing over the introduction of the term “reasonable” in the Select Committee (PD 9741). Nehru’s colleagues in the Cabinet and the party at this time were not exactly pushovers, and people like Ambedkar and Rajagopalachari were hardly shy about the exercise of state power. Without further evidence, we should not assume that Nehru’s was the lone voice which held out against the introduction of this term.

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VIII How should one understand the debates around the First Amendment Bill in the light of Udit Bhatia’s introductory comments on reading the Constituent Assembly Debates? Consider first the attempt to see the Assembly as a discursive body. To be sure, the Provisional Parliament was not the Constituent Assembly, despite Nehru’s protestations to the contrary. One difference, repeatedly remarked upon by opponents of the Bill, was that the deliberations of the Constituent Assembly had not been affected by party political considerations, for instance by the enforcement of a party whip. On the other hand, the members of the Provisional Parliament were keenly aware of the fact that they were debating a constitutional amendment and not an ordinary piece of legislation – the fact that the Constitution is so easy to amend in a sense forces upon any parliament the responsibility to act like an assembly.49 One should be cautious, too, about ignoring the ways in which discussions in the Constituent Assembly might have been inflected by political considerations which were in some sense “off-stage” from the deliberations themselves.50 If we see the Provisional Parliament (and, I would argue, the Assembly before it) as a discursive body, how should one assess the quality of discourse within it? It does not strike me as terribly sophisticated. I have argued elsewhere that arguments from colonial continuity are limited because they can be used to defend substantive positions both for and against the same claim (Burra 2010, 2016c). One set of arguments in the debates were framed in terms of comparative law, with each side defending its position on the proposed amendments by appealing to the law in other parts of the world. Such arguments face a similar problem, because they depend upon an appropriate choice of jurisdiction, and these must be justified on independent grounds. Appeals to constitutional traditions in countries one holds up as ideals – say the United States or Britain – can always be met, as they were by defenders of the First Amendment, with the claim that the appropriate background conditions do not obtain (recall Rev. D’Souza’s point that comparisons with English law were beside the point because Indians lacked the “phlegmatic” character of the English). The same is true of the philosophical arguments in favour of free speech. A claim to free speech which stems from fears of executive overreach, such as that made by Acharya Kripalani, cannot be supported by anecdote alone; it must be supplemented by empirical and institutional analysis (the same applies, of course, for the claim that executives will not abuse the powers granted to them). Arguments from the marketplace of ideas – such as advanced by Syama Prasad Mookerjee in the context of the foreign

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relations exception – have boundary conditions (the avoidance of warfare) which must be noted explicitly. Arguments couched in terms of mistrust of the government have limited applicability when one is in favour of broad government intervention on the whole, or when that government claims popular democratic legitimacy. And I suspect Mookerjee’s claim that one should trust the citizenry would not in fact have had much traction in a country which had experienced several years of communal violence. What of the view that constituent assemblies are to be seen as political bodies? The political dimensions of the debates in the Provisional Parliament, and before that in the Constituent Assembly, need to be explored in much greater detail.51 How should one think about Syama Prasad Mookerjee’s defence of press freedom when one learns that the Organiser case had to do with the publication of inflammatory material regarding the conflict in East Bengal in 1950, a conflict which led Mookerjee to resign from the Cabinet in April that year, and in which the Hindu Mahasabha from which he had recently resigned is quite likely to have had a role in antiMuslim violence in Calcutta (Raghavan 2010, 149–185)? Does it get further complicated when one learns that Mookerjee was an office-bearer of the All-India Civil Liberties Union, which was based out of the Servants of India Society in Pune – an organisation of which Hriday Nath Kunzru had been the president (Burra 2016a)? Does our view of Acharya Kripalani’s attack on the Government change when one learns that he broke away from the Congress to form the Krishak Mazdoor Praja Party only a few days after the First Amendment Bill was passed (Kochanek 1968, chapter one; Krishak Mazdoor Praja Party 1951, p. 13)? What should we make of Hukam Singh’s vote against the Bill upon learning that he was at that time an associate of Master Tara Singh’s in the Akali Dal (Nayar 1966, 135–138)? Or of Nehru’s views on press freedom in light of his letters to chief ministers asking them not to abuse speech-restrictive legislation?52 To understand the parliamentary debates around the First Amendment we need to understand more clearly what background political factors might have been driving some of the alliances and responses whose expression is evident in the debates, keeping in mind the political turbulence of the times. Doing so need not lead to a reductive argument from political interest to ideology; after all, the causal link might just as well go the other way. What is required is some theoretical way of integrating the political history of these debates with the text of the debates themselves. This is an exciting field for further enquiry: the lessons learned are bound to enrich our understanding of the Constituent Assembly Debates as well. For comments, references, and helpful discussion on the themes of this chapter, I wish to thank President Aharon Barak, Yael Berda, Professor Andre Beteille, Anuj Bhuwania, Jessica Boyd, Rohit De, Deborah Dinner, 156

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Ramachandra Guha, Mathew John, Indivar Kamtekar, Siddharth Narrain, Pratap Bhanu Mehta, Vikram Raghavan, Bhavani Raman, Daniel Rothschild, Jeff Redding, Professor Peter Schuck, Devika Sethi, Shivprasad Swaminathan, Arkaja Singh and Arun Thiruvengadam. Earlier drafts were presented to audiences at the University of Madison-Wisconsin’s Annual South Asia Conference, the LEGS seminar at the Law and Public Affairs Program at Princeton University, the Law and Social Science Research Network’s 2009 conference in Delhi and the Jindal Global Law School. Thanks also to the audiences at these talks for stimulating comments and questions.

Notes 1 For comments, references, and helpful discussion on the themes of this chapter, I wish to thank President Aharon Barak, Yael Berda, Professor Andre Beteille, Anuj Bhuwania, Jessica Boyd, Rohit De, Deborah Dinner, Ramachandra Guha, Mathew John, Indivar Kamtekar, Siddharth Narrain, Pratap Bhanu Mehta, Vikram Raghavan, Bhavani Raman, Daniel Rothschild, Jeff Redding, Professor Peter Schuck, Devika Sethi, Shivprasad Swaminathan, Arkaja Singh and Arun Thiruvengadam. Earlier drafts were presented to audiences at the University of Madison-Wisconsin’s Annual South Asia Conference, the LEGS seminar at the Law and Public Affairs Program at Princeton University, the Law and Social Science Research Network’s 2009 conference in Delhi and the Jindal Global Law School. Thanks also to the audiences at these talks for stimulating comments and questions. I am grateful to the staff at the Parliamentary Library, New Delhi, for help in locating sources related to the First Amendment. 2 Statement of Objects and Reasons, Constitution (First Amendment) Bill (Bill No. 48 of 1951). 3 The cases were Romesh Thapar v. State of Madras (AIR (37) 1950 Supreme Court 124) and Brij Bhushan v. State of Delhi (AIR (37) 1950 Supreme Court 129). 4 See Table 6.1 for a list of the cases and relevant statutes. 5 In re Bharati Press, AIR (38) 1951 Patna 12 (Patna High Court, 13 October 1950). 6 The case was Tara Singh Gopi Chand v. The State, AIR (38) 1951 Punjab 27. 7 The Constitution (First Amendment) Bill, 1951 (Bill No. 48 of 1951, as introduced in Parliament). 8 Despite the intensity of debates around the First Amendment after its passage and soon afterwards (the Press Commission of India (1954) devoted most of a chapter to it), the story of the First Amendment has attracted little scholarly attention in recent years – Sethi (2015), Austin (1999) and Menon (2004) are notable exceptions to the general silence. 9 In his recent account of Indian free speech jurisprudence, Gautam Bhatia (2015: 53) is slightly more circumspect. He notes that Romesh Thapar and Brij Bhushan were highly speech-protective cases, and that the First Amendment was criticised at the time for the breadth of its restrictions and the possibility of their abuse. He does not, however, take an explicit position on the Amendment.

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10 See Austin (1966) for more details about the formation of the Constituent Assembly. As he points out (1966, pp. 11–15), many of the Congress nominees were not in fact members of the Congress party. In November 1946, Jinnah formally disassociated the League from the Constituent Assembly, and so only 207 members took part in the inaugural session. The League never lifted this boycott; thus the restricted franchise was only one source of what some took to be the unrepresentative character of the Assembly. 11 S. 8(1) of the India Independence Act. The Act also specified (s. 8(2)) that the new Dominions and their Provinces would be “governed as nearly as may be in accordance with the Government of India Act, 1935” unless the Constituent Assembly deemed otherwise. 12 Austin 1966, p. 8. 13 In Austin 1999, p. 5, Austin seems to suggest that the terms “Dominion” and “Provisional” Parliament can be used interchangeably to describe this body both before and after the adoption of the Constitution. Here I believe he is incorrect, because once India became a Republic it ceased to be a Dominion. 14 AIR (37) 1950 Supreme Court 124 (Supreme Court, 26 May 1950). 15 AIR (37) 1950 Supreme Court 129 (Supreme Court, 26 May 1950). 16 AIR (38) 1951 Punjab 18 (Punjab High Court, 12 September 1950). 17 Also known as Shailabala Devi, AIR (38) 1951 Patna 12 (Patna High Court, 13 October 1950). 18 AIR (38) 1951 Madras 70 (Madras High Court, 2 November 1950). 19 AIR (38) 1951 Punjab 27 (Punjab High Court, 28 November 1950). 20 In what follows, I will refer to this as the “Press Act”. 21 These were made by the Criminal Law Amendment Act (Act XXIII of 1932). 22 Nehru stresses this repeatedly in various letters in 1951, to B. N. Rau among others (Sethi 2015). Many thanks to Mahesh Rangarajan for drawing my attention to Nehru’s letters to his chief ministers in connection with freedom of speech. See Sethi (2012) for more on the relationship between censorship and partition violence. 23 Hugh Tinker (1977) reports that Master Tara Singh had been implicated in plans to assassinate Jinnah in 1947, and Ian Copland (2002, p. 680) reports that after April 1947 the politics of the Akali Dal, of which Tara Singh was the leader, had moved beyond a demand for Khalistan to a desire for revenge; their efforts in this direction included reaching out to Hindu groups such as the Hindu Mahasabha and the RSS, who shared a similar fear of Muslim domination. 24 See Austin 1999, pp. 42–46 for the story on the executive side. Sethi 2015 discusses the shape of commentary on the Bill within the press. 25 I will henceforth abbreviate the Parliamentary Debates as “PD”. Citations are to columns within the debates, not page numbers. 26 See the amendments moved by Naziruddin Ahmad, Sardar Hukam Singh, Shri Sarangdhar Das, Syamnandan Sahaya, S. P. Mookerjee and H. V. Kamath (PD col. 8834-35). 27 For instance, J. P. Srivastava (PD col. 9045) compared Dr Ambedkar’s support of the Bill with those of Reginald Maxwell – who, as Home Member in 1942, had been responsible for much of the repressive framework of the Government response during the Quit India Movement. In Burra 2010 and Burra 2016c I argue that we should treat such arguments with caution.

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28 This claim might also be debated: for the Bill did seek to revive laws which up to that point had been declared unconstitutional. 29 Nehru did not specify just what aspect of the international situation warranted the introduction of this clause; one interpretation was that it was targeted at criticisms of Pakistan by politicians such as Syama Prasad Mookerjee. This is the view of Chandrachud 2016. However, Sethi (2012, 254) quotes a letter from Nehru to B. N. Rau in which he says “As a matter of fact these “Foreign Relations” [sic] was put in for good form, and not because there was any positive need for it”. 30 This is a slight reconstruction of what he says. 31 Here he echoed an earlier criticism made by Sardar Hukam Singh during the Constituent Assembly Debates on fundamental rights. Hukam Singh was a staunch opponent of the First Amendment Bill in Parliament, and voted against it. 32 The doctrine of “police power” gives the state the right to protect itself whether or not the right is given explicitly in the constitutional text; the doctrine of “implied power” allows Courts to presume that, if an authority has been given one power, it has also got the powers relating to the necessary means for fulfilling it – whether or not these subsidiary powers were explicitly granted (PD col. 9012). 33 This should be seen as a piece of rhetoric: the Congress government would not have had a hand in almost any judicial appointments at this point. 34 The term “annulment” has a neutral ring to it, but at least at one point the previous year Mookerjee had contemplated war. See Raghavan (2010), chapter five, for background. 35 In addition to those noted earlier, speeches against the Bill were made by Deshbandhu Gupta, Kameshwara Singh, Syamnandan Sahay, Husain Imam, Sarangdhar Das, J. P. Srivastava and K. K. Bhattacharya. One should not assume, of course, that they all spoke in one voice. 36 With respect to the question of the “revival” of the laws which had been struck down, Nehru argued that the revival would not be automatic. It would still be up to the Courts to pronounce on the validity of the laws in relation to the amended Constitution. But in any case it would still be up to Parliament to decide whether or not to continue with laws governing sedition and the like. 37 The Constitution (First Amendment) Bill, 1951 (Bill No. 48 of 1951, as amended by the Select Committee). 38 In addition to Nehru, it comprised Professor K. T. Shah, Sardar Hukam Singh, Pandit Hriday Nath Kunzru, Dr Syama Prasad Mookerjee, Naziruddin Ahmad, C. Rajagopalachari, L. Krishnaswami Bharati, Awadeshwar Prasad Sinha, T. R. Deogirikar, Dr B. R. Ambedkar, V. S. Sarwate, Mohanlal Gautam, R. K. Sidhva, Khandubhai Desai, K. Hanumanthaiya, Raj Bahadur, G. Durgabai, Manilal Chaturbhai Shah, Dev Kanta Borooah and Satya Narayan Sinha. 39 Eight notes of dissent were filed in all: by G. Durgabai, Mookerjee, Kunzru, Hukam Singh and K. T. Shah in their individual capacities, as well as two by Naziruddin Ahmad. K. T. Shah, Naziruddin Ahmad and Hukam Singh also signed a joint note. 40 The opponents were Shri Birua, Sarangdhar Das, Hussain Imam, Sardar Hukam Singh, Jaipal Singh, Acharya and Sucheta Kripalani, S. P. Mookerjee,

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Naziruddin Ahmad, Babu Ramnarayan Singh, Shibban Lal Saksena, D. S. Seth, K. T. Shah and Shri Subbiah (PD col. 9805). 41 Professor K. K. Bhattacharya, Shri Birua, Sarangdhar Das, Sardar Hukam Singh, Hussain Imam, H. V. Kamath, Acharya and Sucheta Kripalani, H. N. Kunzru, Damodara Menon, S. P. Mookerjee, Naziruddin Ahmad, Babu Ramnarayan Singh, Sadiq Ali, Syamnandan Sahaya, Shibban Lal Saksena, K. T. Shah, M. P. Sinha and R. Velayudhan voted against it (PD cols. 9888-9889). 42 Professor K. K. Bhattacharya, Shri Birua, Sarangdhar Das, Sardar Hukam Singh, Hussain Imam, Jaipal Singh, Acharya and Sucheta Kripalani, H. N. Kunzru, Sardar B. S. Man, S. P. Mookerjee, Naziruddin Ahmad, Shri Oraon, Babu Ramnarayan Singh, Shibban Lal Saksena, D. S. Seth, K. T. Shah, M. P. Sinha and R. Velayudhan voted against it (PD cols. 10106-7). 43 See Prasad’s letter of 14 June seeking Alladi Krishnaswami Ayyar’s advice on this matter in Choudhary, ed. (1991, pp. 69–70). Prasad had previously expressed his reservations about the Amendment at the end of April (pp. 273–277). 44 It was first suggested to me by President Aharon Barak. H. M. Seervai (1991/2015) does suggest that J. Fazl Ali’s dissenting judgements in both cases were correct, but he does so only in passing (715). A similar claim is made by Bedi (1966, pp. 403–404). 45 Even the highly speech-protective standard of the US Supreme Court in Brandenburg v. Ohio (395 U.S. 444, 1969) allows for censorship of the advocacy of force “where such advocacy is directed to inciting or producing imminent lawless action”. Arguably, the CrossRoads standard is even more stringent, since it permits such advocacy unless it is directed to undermining the security of the state. 46 See the division of votes on the motion to take into consideration the Amendment Bill as reported by the Select Committee, columns 9802-9805 of the Parliamentary Debates, vol. XII (31 May 1951). 47 Alladi Krishnaswami Ayyar had written to B. N. Rau in March 1947 of the need for a public order exception in the fundamental rights clause (Shiva Rao 2004, vol. 5, p. 212); in a letter from Nehru to the Speaker of the House, G. V. Mavalankar, Nehru noted that Alladi Krishnaswami Ayyar had been consulted about the amendments and had approved of them (letter of 16 May 1951, SWJN Second Series, vol. 16, pp. 171–172); B. N. Rau’s draft constitution of October 1947 included a public order exception (Shiva Rao 2004, vol. III, pp. 8–9); Sardar Patel had written to Nehru about the possible need for a constitutional amendment in July 1950, merely a week after the Supreme Court judgements came out, and would certainly have approved of the amendment had he been alive. See the letter from Patel to Nehru of 3 July 1950 in Das (1972, p. 358), quoted in Austin (1999, p. 42). (Austin does not mention that Patel had spoken of the possible need for an amendment in this letter.) Austin also describes (1999, p. 43) a letter from Pant which suggests that he saw a need to curb freedom of speech, though he seems to have been ambivalent about the need for a constitutional amendment. 48 It is worth noting here that K. M. Munshi, who had moved to drop the term “sedition” in the Constituent Assembly, voted in favour of the amendment to Art. 19(2). He had been an influential member of the Sub-Committee on Fundamental Rights in the Constituent Assembly, and was also member of a Cabinet Meeting in October 1950 when the amendment was discussed (Austin 1999, p. 48).

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9 Thanks to Pratap Bhanu Mehta for alerting me to this point. 4 50 For instance in the Congress Assembly Party, which Austin (1966, p. 27) takes to have decided the fate of most provisions before they reached the floor of the Assembly (Austin notes that attendance was not restricted to members of the Congress, and included people like Syama Prasad Mookerjee: this does not affect the point about off-stage deliberations). See also Aditya Nigam’s (2008) observations on the ways in which the Assembly might have fallen short of an ideal deliberative body. 51 Thanks to Kalyani Ramnath for stressing this point. 52 See Sethi 2015.

References Austin, Granville. (1966). The Indian Constitution: Cornerstone of a Nation. New York: Oxford University Press. Austin, Granville. (1999). Working a Democratic Constitution: A History of the Indian Experience. New Delhi: Oxford University Press. Bali, Amar Nath. (1949). Now It Can Be Told. Jullundur: Akashvani Prakashan. Bedi, A.S. (1966). Freedom of Expression and Security. London: Asia Publishing House. Bhatia, G. (2016). Offend, Shock or Disturb: Free Speech under the Indian Constitution. London and New Delhi: Oxford University Press. Burra, Arudra. (2010). The Cobwebs of Imperial Rule. Seminar, 615, 79–83. Burra, Arudra. (2016a). Civil Liberties and Political Ideology. Unpublished draft. Burra, Arudra. (2016b). What Self-Styled Nationalists Could Learn From the Hindu Right’s Own Past Record on Free Speech. Scroll.in, 27 January 2016, available at http://scroll.in/article/802327/what-self-styled-nationalistscould-learn-from-the-hindu-rights-own-past-record-on-free-speech (accessed on 13 September 2016). Burra, Arudra. (2016c). What Is “Colonial” About Colonial Law? American University International Law Review, 31(2), 137–69. Chandrachud, Abhinav. (2016). Of Curbs to Free Speech. The Hindu, July 27. Chandran, Mini. (2016). A Different Neighbourliness. Indian Express, 29 August. Choudhary, Valmiki. (1991). Dr. Rajendra Prasad: Correspondence and Select Documents, volume Fourteen (January to December 1951). Bombay: Allied Publishers. Copland, Ian. (2002). “The Master and the Maharajas: The Sikh Princes and the East Punjab Massacres of 1947”. Modern Asian Studies, 36(3), 657–704. Das, Durga. (1972). Sardar Patel’s Correspondence 1945–50, vol. 10, 358. Navjivan Trust. Galanter, Marc. (1985). Competing Equalities: Law and the Backward Classes in India. Berkeley: University of California Press. Guha, Ramachandra. (2016). Eight Threats to Freedom of Speech in India, in Democrats and Dissenters. Allan Lane. Hindu Mahasabha. (1951). Election Manifesto of the Akhil Bharat Hindu Mahasabha. Delhi: Hindu Mahasabha.

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Kochanek, Stanley. (1968). The Congress Party of India: The Dynamics of a OneParty Democracy. Princeton: Princeton University Press. Krishak Mazdoor Praja Party. (1951). Bulletin of the Krishak Mazdoor Praja Party, July 31. Liang, Lawrence. (2004). Reasonable Restrictions and Unreasonable Speech, in Editorial Collective, ed. Sarai Reader 2004: Crisis/Media. Delhi: Sarai. Liang, Lawrence. (2016). Free Speech and Expression, in Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta, ed. The Oxford Handbook of the Indian Constitution. Oxford: Oxford University Press. Mehta, Pratap Bhanu. (2015). The Crooked Lives of Free Speech. Open Magazine, vol. 7:5, 31 January–7 February. Menon, Nivedita. (2004). Citizenship and Passive Revolution: Interpreting the First Amendment. Economic and Political Weekly, 39(18), 1812–1819. Merillat, H. C. L. (1970). Land and the Constitution in India. New York: Columbia University Press, 1970. Nigam, Aditya. (2008). A Text Without Author: Locating the Constituent Assembly as Event, in, Bhargava, ed. Politics and Ethics of the Indian Constitution, 119–139. Delhi: Oxford University Press. Pal, Samaraditya. (2015). India’s Constitution: Origins and Evolution, vol. 2. Lexis-Nexis. Press Commission of India. (1954). Report of the First Press Commission. Delhi: Manager of Publications Press Laws Enquiry Committee. (1948). Report of the Press Laws Enquiry Committee. Delhi: Manager of Publications. Raghavan, Srinath. (2010). War and Peace in Modern India: A Strategic History of the Nehru Years. Delhi: Permanent Black. Seervai, H. M. (1971/2015). Constitutional Law of India: A Critical Commentary, volume 1, Fourth Edition. Universal Law Publishing Co. Sethi, Devika. (2012). Proscribing Ideas: Censorship in India, c.1930–60. Unpublished PhD dissertation. Sethi, Devika. (2015). Press Censorship in India in the 1950s. Nehru Memorial Museum and Library Occasional Paper, New Series 49. Shiva Rao, B. (2004a). The Framing of India’s Constitution: A Study, Second Edition by Dr. Subhash Kashyap. Universal Law Publishing. Shiva Rao, B. (2004b). The Framing of India’s Constitution: Select Documents, 4 volumes, Second Edition by Dr Subhash Kashyap. Universal Law Publishing. Tinker, Hugh. (1977). Pressure, Persuasion, Decision: Factors in the Partition of the Punjab, August 1947. Journal of Asian Studies, 36(4), 695–704.

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7 BETWEEN INEQUALITY AND IDENTITY The Indian Constituent Assembly Debates and religious difference, 1946–50 Shabnum Tejani*

Scholars examining the Constituent Assembly Debates (1946–50) have suggested that these developments can be explained in part by the failure of the Constituent Assembly (henceforth CA) to clarify the role of the state in religious and “minority” affairs from the outset. Copland1 argues that in the CA debates “secularism” was deployed in a variety of ways to mean multiple things simultaneously, thus paving the way for future problems. Others maintain that while the CA sought to strengthen secular citizenship, in responding to the paradoxes and contradictions of Indian society it “created devices that affirmed religious and caste identities”.2 Hence, as the CA debates did not “resolve” the relationship of religion and state, the postcolonial Indian state was not bound to behave in secular ways, with important implications for the ability of the Hindu right later to appropriate the language of secularism for its own political agenda. This chapter reconsiders such arguments through further examination of the CA debates. I suggest that it was not that secularism was left undefined, but that it remained unclear what recognition of “minority” status was meant to achieve. Spokesmen for religious minorities in the CA argued that recognition would overcome their position of relative “backwardness” or marginality in state institutions, erasing the imbalance between minorities and majorities and potentially doing away with minorities altogether. However, even as it sought to establish the framework for secular citizenship based on the individual rather than the community, the CA’s resistance to considering the arguments of religious minorities about their inequality

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paradoxically reified religious community identity. India’s secular state precluded religious minorities from forwarding claims for equality, instead requiring them to accept their status as permanent minorities in India’s new democratic dispensation.

Minority protection and secularism How to protect India’s minority and “backward” communities had been considered in various official fora since the late nineteenth century. In 1909, separate electorates were introduced in legislative councils for Muslims as a significant religious minority, as well as for a range of non-confessional minority community interests, including for instance the landlords of Sind, the Bombay Chamber of Commerce, jute farmers of Bengal and tea planters of Assam.3 Members of each of these interests would form an electorate separate from the general body of eligible voters to choose a representative from within that “community” itself. From this point on, separate electorates became an important way to ensure that “minorities” were represented in constitutional and policy matters.4 From the early 1920s, the minority question included the “depressed classes”, otherwise known as the Untouchables, although there was no separate electorate for them. Later reforms established that there should be reserved seats in government colleges and the civil and military administration for Untouchable and tribal communities who, after 1935, were termed the Scheduled Castes and Scheduled Tribes.5 These were to be in joint, rather than separate, electorates. Before independence, then, the protection of religious and caste minorities was considered together. Minorities were to be protected through reservations, decided on the basis of the community’s relative “backwardness” vis-à-vis the “General” community.6 However, after partition, the way in which minorities would be protected changed fundamentally. Separate electorates for religious minorities came to be perceived as redundant and negative, continuing a separatist or “communal” outlook that had been encouraged by colonial policies. Many CA members argued that the constitutional guarantee of freedom of religion and equal treatment before the law now gave adequate protection. But the spokesmen for religious minorities, as well as the Scheduled Castes and Scheduled Tribes, maintained that they required guarantees in the Constitution itself to ensure that the promise of equality of opportunity was made good. Reservations were necessary to ensure that “smaller” voices were heard in a representative framework that would, by definition, value the individual over the group. Here, “secularism” was invoked as an argument against reservations for religious minorities. Secularism would protect fundamental religious freedoms and be the panacea for the ills of 164

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communalism. Significantly, reservations for caste minorities were ultimately retained and justified quite differently. As part of the responsibility of an egalitarian democratic state, they were treated as a temporary necessity to level the playing field and right historic wrongs.7 Such differential treatment created new difficulties as religious minorities continued to argue for the recognition of their distinctiveness as communities. Certainly, this was about asserting the legitimacy of their group’s identity in the nation. Equally, it was about aspirations that the CA recognised their politically and educationally unequal positions. As the CA drew to a close in 1949, representatives of Sikhs and Muslims asserted they would forgo reservations for recognition of their “backwardness”. It is striking that religious minorities themselves, once having fought for reservations as a mode of recognition, now believed they would cast them in a position of permanent inequality. But religious minorities were denied the possibility of inclusion among the “backward classes” on the grounds that they were separate communities rather than unequal classes in India’s secular democracy. Writing on secularism in India has tended to follow a normative understanding, turning on the place of religion in the public sphere and on the separation of state and religious institutions.8 This approach was reflected in the debates in liberal academic circles following the rise of Hindu communalism in the late 1980s,9 as well as in scholarship that has studied the discussion on secularism in the CA.10 I argue here that this focus on the “problem of religion” or “communalism”, as a way of understanding the crisis of Indian secularism, has been a red herring of sorts, for it takes the gaze away from the substantive arguments minorities were making in the CA about how their equal citizenship would be guaranteed. The secularism–communalism binary has thus tended to preclude a deeper consideration of inequality.

The Constitution, Constituent Assembly and secularism: recent arguments Scholars have argued that secularism in India was closely tied to Indian nationalism and values of liberal democracy.11 Ian Copland12 disagrees, correctly pointing out that the term hardly appears at all in political discourse leading up to independence, nor is it used in reference to an idea of freedom of religion before 1947. Moreover, the Constitution does not provide the basis for a secular state, if that is understood to be the separation of political from religious institutions. Indeed, it allows the opposite, as the state can fund religious schools and intervene in religious institutions which violate the dignity of the individual.13 The Indian state’s interventionism in 165

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religion had precedents in history, he notes. The pre-colonial state maintained a symbiotic relationship between state and religion and the colonial state’s approach was also not one of separation but strategic “non-interference”, managing relations between communities, legislating on temple management and so on.14 Furthermore, officials understood Indian society as comprised of communities rather than individuals, and, consequently, colonial policies created an incentive for Indians to fashion their claims on the state in “communal” terms. In the postcolonial period, this relationship between the state and religious communities was politicised through appeals to “vote banks” and “appeasing minority groups”, opening the door to communalists, particularly Hindu nationalists, for exploitation.15 Chiriyankandath16 argues that the way in which the CA dealt with questions of religion and secularism was deliberately ambiguous. The CA “had to recognize the many paradoxes of the Indian situation”, in particular, how to adapt the form of a secular democracy in a communalised society, divided by caste hierarchy and bloodily torn apart by partition.17 In these discussions, some of the fundamental tenets of secularism were compromised. A uniform civil code was never introduced and reservations for Scheduled Castes and Scheduled Tribes, initially limited to 10 years, have been renewed every decade since independence. Consequently, Muslim Personal Law remains a highly sensitive political issue and caste politics have become a significant feature of Indian democracy. Both Copland and Chiriyankandath take the “wall of separation” position of the US constitution requiring that the state remain aloof from religion, to show how Indian secularism was inadequately implemented and an aberration in form. Bajpai,18 in contrast, traces how secularism intersected with minority group recognition in the CA debates and shows that secularism became associated with a series of overlapping concepts: democracy, social justice, development and national unity. It was thus tied into a national project which provided the framework for how the minority question would be addressed. Similarly, Bhargava19 argues that in India, secularism was a “multi-value” concept, embodying the substantive values of the egalitarian democratic state that India aspired to be. Thus, intervening in religious practices which maintained caste discrimination, such as opening temples to all sections of Hindus, may not have been secular in the strict understanding of the term, but did not undermine the secularism of the state. I have argued elsewhere that secularism in India was a relational category. Not simply about a separation of political from religious institutions or creating an Indian ethics of tolerance, secularism represented a formulation of nationalism that involved dovetailing liberal discourses around individual representation with definitions of majority and minority populations defined communally.20 Indian secularism emerged at the nexus of 166

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nationalism and democracy, with caste, crucially, at its centre. It was in the separation of caste and religious minorities around the reservation issue that a meaning for secularism was crystallised in the CA Debates.21 I noted earlier that secularism, like religion, has been a red herring. Thus, here I ask two separate questions of the CA debates: what did it mean to be a minority, and what were reservations for?

Debates in the Constituent Assembly of India, 1946–49 The composition of the CA has been outlined in detail.22 In summary, elections to the CA were held on the basis of the 1946 provincial elections where the Congress won an overwhelming majority of seats, all of which went into a “General” category of representatives to the CA. There were no separate provisions within this General category for representation of minority interests, but the Congress Working Committee recommended that Provincial Congress Committees should ensure the selection of candidates from a range of communities. The Working Committee also ensured the selection of Congress leaders such as Jawaharlal Nehru, Pandit Govind Ballabh Pant, Sarojini Naidu, Rajendra Prasad, Pattabhi Sitaramayya, C. Rajagopalachari and B. Shiva Rao from different parts of India. There was also an imperative to include experts in constitutional law and administration, though they were not Congress members, including H. N. Kunzru, B. R. Ambedkar and K. M. Munshi.23

Minority representation The CA promised at the outset that the rights of all minorities would be protected. The question was, however, who constituted a “minority” and what was the nature of safeguards required. Through the late colonial period, separate electorates had been seen as the best method to ensure the proper representation of minority concerns, and religious and caste minorities made the case for continuing reservations into the period of independence. Sikh representatives, Sardar Ujjal Singh and Harnam Singh, argued that their historic contribution to Indian society went beyond what their numbers reflected and entitled them to a full set of provisions: 6 per cent of all seats in the central legislature, a seat for at least one Sikh in the cabinet of the Union, 5 per cent reservations in the central services and recognition of their historic presence in the army in recruiting to the defence forces. Sikhs should also be represented on various statutory bodies of the Union government and recognised in the provinces as a minority except in Punjab, which should have a separate legislature.24 The All-India 167

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Adi-Hindu Depressed Classes Association submitted that the Constitution should provide for representation for Scheduled Castes in proportion to their population.25 The Advisory Committee on minorities considered these submissions as well as memoranda from other communities and organisations. To determine the relative claims of each, religious and other minorities were divided into three groups on the basis of size. Group A comprised those who made up less than 0.5 per cent of India’s population, omitting the princely states. These were the Anglo-Indians, Parsis and plains tribesmen of Assam. Group B were those whose population was below 1.5 per cent, the Indian Christians and Sikhs. Group C were those who exceeded this, the Muslims and Scheduled Castes. The Committee recommended that Anglo-Indians and Parsis should be given the right of reserved representation at the centre, while discussion of the plains tribesmen was deferred. For Indian Christians the committee recommended reservations in provincial legislatures without weightage. The decision for Sikhs was also deferred, as the position of East Punjab remained uncertain in spring 1947. Significantly, the Committee agreed that separate electorates be abolished and no weightage be given to any minority in Groups B or C.26 Instead, there would be joint electorates with reservations in proportion to the population for Muslims and Scheduled Castes for ten years. By the time the recommendations of the minorities sub-committee were considered in the CA at the end of August 1947, partition had become a reality. This shifted the dynamic in two ways. First, the departure of 55 Muslim League members left behind what came to be called the League “rump”, merely 28 individuals under enormous pressure to demonstrate their loyalty to India. The League’s ability to demand accountability in constitutional provisions was now practically dead. Second, partition was seen by an overwhelming number in the CA as the result of the secessionist politics of a minority. Bajpai27 notes that scholars have placed undue emphasis on partition as undermining the bargaining power of religious minorities. Although partition certainly curtailed the rights of religious minorities during constitution making, she points out that reservations were in place right up to 1949. More than partition, Bajpai28 suggests that it was “the availability of a normative vocabulary in which political safeguards for minorities were illegitimate” that explains why reservations were ultimately retracted. We shall return to this point later. The review of the Committee’s report confirmed that minority safeguards would be in joint, rather than separate, electorates. But the criteria for what constituted minority status were far from evident. Was this an ethical category, or did it simply represent the numerical proportion of different groups? What did minority status signify? The slippery nature of this 168

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concept made many uneasy. Jaipal Singh, an adivasi advocate from Bihar, challenged the suggestion that adivasis were a minority.29 As the aboriginal people of India, their significance could not be subsumed under a politics of numbers, he said. Adivasis were “the original owners of this country, [and] even if they are only a few, can never be considered a minority. They have prescriptive rights which no one can deny”.30 For Sri Nagappa, a Scheduled Caste Congress representative from Madras, it was imperative that his community were recognised as a minority. Hindus and Muslims were working to expand their numbers and wanted to lay claim to the Scheduled Castes, he said. Recognition as a minority was crucial if they were to resist appropriation into one or other community. Their numbers should be protected because only this would ensure their proper visibility in institutions.31 Opposition to their separate categorisation remained, often for precisely the reasons that Nagappa argued. One member from the United Provinces stated that “Mr. Jinnah has always tried to include the Scheduled Castes as a minority, but, so far as we are concerned, we consider the Scheduled Castes as belonging to Hindus, they are not a minority, they have always formed part of us”.32 While there was much to argue over in terms of the extent of reservations that Muslims, Anglo-Indians, Jains, Sikhs and Christians were entitled to, that they were minorities was not contested. It was the Scheduled Caste question around which the discussion turned. K. M. Munshi sought to clarify the position of Scheduled Castes. “Minority”, he said, was defined in international treaties and international law along racial, religious and linguistic lines, but the Scheduled Castes were none of these. The use of the term “minority” to refer to them as such was, he felt, “a very mischievous extension”. Munshi argued that Harijans, the Gandhian term for Untouchables, were “part and parcel of [the] Hindu community, and the safeguards are given to them to protect their rights only till [sic] they are completely absorbed in the Hindu community”.33 The Scheduled Castes for Munshi, then, were not a minority, they were Hindus. The debate around the criteria for recognition as a minority revealed profound differences around the nature of democracy. The constitutional question had always been how to reconcile the political recognition of communities with the priority of national unity and the subsequent creation of a body of citizens. How far were those who agitated for separate electorates undermining this goal? In this, a consideration of the relative size of each group measured against the “General” category or the so-called majority mattered tremendously. Debi Prosad Khaitan, a Congress member from West Bengal, articulating the fears of many, argued that if Scheduled Castes were made a category in their own right, then together with Muslims they would form close to half the total population, after which there would be 169

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reservations for Christians, Sikhs, Buddhists and others, rendering Hindus a minority. Independent India could not be comprised of a series of minorities, he warned, this was not democracy as people knew it.34 It is significant that the issue of minority representation turned on the Scheduled Castes and not Muslims because the question of whether the Scheduled Castes were to be recognised as a community separate from Hindus forced a consideration of what precisely the purpose of reservations was. Should a representative structure ensure that all communities found a public presence to reflect the diversity of India? Or were reservations to be justified as a leveller and distributed on the basis of a community’s “backwardness”? How disenfranchised castes were to be categorised, as communities in their own right or historically backward people in need of a temporary leg up, would ultimately determine what place “community” would have in the future nation.

Reservations and secularism Reservations and the protection of minorities were closely woven into the fabric of the discussion on secularism and what constituted a secular state. During the early CA meetings (December 1946 to end August 1947), reservations had been considered as a possible solution to allay apprehensions that minorities would be overlooked after independence. The reality of partition put huge pressure on minority representatives to forgo these demands, to favour “national unity” over “communalism”. Although “secular” was not part of the formal description of the Indian state until 1976, it was widely accepted at independence that this would be so. The protection of minorities was assured in the resolutions on fundamental rights and was central to the discussion of how India should be constituted as a secular state.35 Many CA members argued that protection through reservations was defensible only to uplift the historically disenfranchised, so that they may eventually take their place as citizens in a modern nation. For Nehru, reservations were part of the “duty and responsibility of the majority”, necessary to win the confidence of minorities.36 These measures would be temporary and their intended effects would undermine the need for the measures themselves. Many others took a more exacting position, insisting that protection for any specific group violated the principles of a secular state. Mahavir Tyagi, a Congress member from the United Provinces, argued that no one – not Scheduled Castes, Sikhs, Muslims or Hindus – should ask for any kind of reservations because, “we are a secular state . . . we cannot give recognition or weightage to any religious group of individuals”.37 What precisely constituted secularism was taken up by a number 170

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of contradictory and often opposing political agenda. Tyagi’s point was that India should not recognise religious communities in its institutional framework. However, by placing Hindus alongside other communities, he effectively levelled their differences. In implying that they were simply one community among many and equally entitled to protection, he failed to acknowledge that reservations emerged from an imperative to address the unequal relationship between them. Independence had a significant bearing on the debate on secularism. The transition to a democracy marked a disjuncture with the past in important ways. Secularism now embodied the value of unity that nationalism had before. Where before 1947, the liberal and right-of-centre politicians from the Congress and the Hindu Mahasabha had argued that “communal reservations” and “communalism” undermined “nationalism”, now they were seen to pose a threat to secularism. Independence, in creating a democratic secular republic where minorities would be protected, was to have resolved the communal problem. Importantly, provisions for ensuring freedom of religion and the protection of religious minorities were now addressed in the discussions on secularism, while those to do with ensuring justice for Scheduled Castes turned on the issue of “backwardness”. The de-linking of secularism from minority protection shifted what had thus far been the perceived purpose of reservations. The CA had initially emphasised the importance of reservations for levelling the playing field. But there was also an element that carried over from the earliest debates, of representation, in a sense, for the sake of it. When separate electorates were introduced in 1909, they were to reflect the communal character of India and to ensure the participation of these communities in public life. Such an approach implied the inherent value of group representation and that minor groups should be able to represent themselves. However, now that India was in the process of framing a democracy that guaranteed the protection of fundamental rights, the necessity of retaining group identity through separate categories was undesirable. Reservations were not rejected altogether, but their purpose became solely to protect the “educationally and culturally backward”.38

The question of “backwardness”: “classes” versus “minorities” Whether the terms “classes” or “minorities” should be used was first raised in April 1947 in the context of a discussion on fundamental rights. Many were concerned that if “minority” were to be defined solely by an ascriptive identity, be it caste or religious community, then equally deserving others would be excluded. K. M. Panniker, for instance, argued that in India, 171

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“minority” had come to have a particular meaning, referring to religious or political minorities, Sikh, Muslim or Depressed Classes. But, he said, there “may be among the majority, among the Hindus, for example, many classes who have not adequate representation in the services. . . . It may be desirable to make some kind of provision . . . for certain classes which we have to encourage to come forward”.39 What this might mean, then, was that the already contested category of “minority” would be replaced with the even more ambiguous “class”. The latter was a category whose parameters could change: as a “backward class” came “forward” they would leave the structure of reservations and enter the “General” category, while other classes may be incorporated. This offered a framework that could accommodate social mobility, but it also raised the question of how to ensure the majority community would not use this to extend its position. It was considered whether both terms should be used, but Sardar Patel, as the Committee’s chairman, insisted that “classes” was a broader term that included “minorities”, a point with which a number of others concurred.40 Hence, the Advisory committee recommended that such reservations would be for underrepresented communities and in force for ten years only. The clause that went into the report for consideration by the Drafting Committee read as follows: There shall be equality of opportunity for all citizens in matters of public employment and in the exercise of carrying on of any occupation, trade, business or profession. Nothing herein contained shall prevent the State from making provision for reservations in favour of classes who, in the opinion of the State, are not adequately represented in the public services.41 However, in a significant departure, the draft constitution substituted “classes” with “any backward classes”. The insertion of the term “backward” proved important, for not only was it left undefined, but critically for this discussion, its introduction marked the effective exclusion of religious minorities from such provisions. Inevitably, then, the criteria for backwardness became the focus of a range of competing opinions. The overwhelming concern in the CA was that claims to backwardness would be almost impossible to contain, for every community had a section of its population that could be defined as “backward” in some way. Thus, before provisions were made for an entire community, its present and potential future position needed careful consideration. Nevertheless, CA members maintained that reservations had to be limited to those communities who would otherwise not be able to

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overcome the barriers they encountered, and it was “not proper” for them to extend beyond this42 (Shiva Rao 1967, p. 687). Spokesmen of religious minorities argued differently. For instance, Mohamed Ismail Sahib, a League member from Madras, argued that Muslims and Christians too were “backward”. Muslim League members in the CA held that although reservations for their communities were deemed communal, people charged with communalism were simply asking for their rights, as “communalism does not come in because people want their rights. When people find that they are not adequately represented, they rightly feel that they must have due representation and then such a demand comes up’. On the other hand, ‘when people . . . find that they are given as good an opportunity as others”; that is, when the conditions of backwardness are removed, “harmony will be there and the so-called communalism will not come in at all”.43 Underlying these discussions were questions over the relationship between community and class. The article in the draft constitution that considered provisions for minority communities in civil service appointments was unclear about the relationship between “minorities” and “backward classes”. In one draft, the article used the word “class”, which included religious minorities and in another “backward classes”, which did not. Whatever the terminology, as H. N. Kunzru pointed out, protection was granted only to a group “on the ground that it is backward and if left to itself, would be unable to protect its interests”.44 Ambedkar, as chairman of the Drafting Committee, explained the insertion of the term. The Constitution had to ensure two potentially contradictory goals: equality of opportunity and provisions for certain communities to enter an administration which, for historical reasons, was controlled by a narrow range of castes and classes. The term “backward” signalled a condition of social, economic and political marginalisation. Its addition had been necessary in order to prevent a whole host of other communities from attempting to stake a claim. Reservations were to be the exception, not the rule. As for minorities, they enjoyed freedom of conscience and there would be adequate provision for the safeguarding of their interests.45 Thus, it was with the insertion of “backward” that class and community were separated.

A reversal of claims On 11 May 1949, Patel submitted to the Advisory Committee the report of a special sub-committee that had met in December 1948 to consider the problems facing minority populations in East Punjab and West Bengal. The committee comprised Nehru, Prasad, Munshi and Ambedkar. In their

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opinion, the conditions in the country had changed to such an extent that “it was no longer appropriate in the context of free India and of present conditions that there should be reservations of seats for Muslims, Christians, Sikhs or any other religious minority”.46 The abolition of separate electorates had “removed much of the poison from the body politic”. Nevertheless, reservation for religious communities “did lead to a certain degree of separatism and was to that extent contrary to the conception of a secular democratic state”. The Advisory Committee voted overwhelmingly to support this, recognising that “the peculiar position of the Scheduled Castes would make it necessary to give them reservations for a period of ten years as originally decided”.47 The complete withdrawal of reservations for religious minorities was a dramatic reversal of fortune. Some Muslim League members abandoned their support of reservations and minority status: “Make us your equal partners, then there will be no majority or minority communities in India”, pleaded Tajamul Husain.48 Indeed, Sikh, Muslim and Scheduled Caste representatives had already begun to lose faith in what reservations could achieve. They warned that representation should not be a substitute for equality; it should be a means to an end, not the end in itself. Towards 1949, in a remarkable twist of arguments, Sardar Hukam Singh had said that reservations did not safeguard the interests of minorities. The very act of recognition ensured the dominant position of the majority: if 30 per cent of posts were reserved for a minority, this still meant that “indirectly you are reserving 70 per cent for the majority”.49 Similarly, Hasrat Mohani argued that to assert that Muslims constituted a minority population of 14 per cent meant that “you still consider yourselves 86 per cent. . . . Why do you say that Muslims are a minority? So long as you depict Muslims in communal colours they will remain a minority”.50 Many pointed out that the policy of reservations had become a concession. Rather than addressing the problem of inequality, they identified majority and minority populations communally. Sri Nagappa challenged the reservation formulation precisely for its failure to address material inequality: I am prepared for the abolition of the reservation, provided every Harijan family gets ten acres of wet land, twenty acres of dry land and all the children of Harijans are educated, free of cost, up to the University course and given one-fifth of key posts either in the civilian departments or in the military departments. I throw a challenge to the majority community that if they are prepared to give this much, I will forgo the whole reservation.51 However, the weight of opinion was behind Nehru, who argued that removing reservations was good not only for minorities, but also good 174

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psychologically for the nation and the world, for “it shows that we are really sincere about this business of having a secular democracy”. The Scheduled Castes were the exception, because they were a way of “helping backward groups in the country”.52 This was not an issue of religion or caste, but of backwardness. Bajpai53 has argued that agreeing to give up reservations reflected a “progressive adaptation” of minority claims to a legitimating vocabulary of liberalism, a capitulation of sorts to a new hegemony. This is important as the CA debates were the place where normative liberal ideals, which had, through the colonial period, sat alongside a range of other political philosophies of governance, were crystallised into a new vocabulary of liberal citizenship.54 However, I would argue that there was more to it than tired resignation. Separate electorates were introduced in part to overcome the backwardness of particular communities. The original provision of 1909 was to be a temporary measure. Similarly, Ambedkar maintained that reservations would be for ten years only. Muslims and Sikhs, it could be argued, were making the case again for the recognition of their social and political marginalisation, not for their permanent re-inscription as communal minorities. For Nehru, Patel and Munshi, doing away with reservations was central to creating universal citizenship and a unified nation. For Sri Nagappa, Hasrat Mohani and Sardar Hukam Singh, this was not nationalism but exclusion. Ambedkar had earlier argued that Indians had taken the wrong path on the question of minority protection: “It is wrong for the majority to deny the existence of minorities. It is equally wrong for the minorities to perpetuate themselves”. A new solution must be found that “will enable majorities and minorities to merge someday into one”. But, he warned, the diehards among the majority had developed a fanaticism against reservations. In India, minorities had put their faith in the rule of the majority and it was the duty of the latter not to discriminate against them. The moment discrimination ceased, “the minorities can have no ground to exist. They will vanish”. However, Ambedkar continued, the problem lay in the fact that the majority in India was “a communal . . . and not a political majority”.55 Herein lay the problem of liberal nationalism in India and it was one that minorities were acutely aware of. It presented itself as universal and secular when it was, in fact, particular and communal. Sardar Hukam Singh reiterated this point with considerable force around the question of the national language. Singh argued that with Hindi as the national language, Punjabi’s status as a regional language must be protected. But, he continued bitterly, the Hindu majority in the Punjab denied that Punjabi was their mother tongue and so it fell to the Sikh minority to advocate it. Unlike in the rest of India where linguistic issues were seen 175

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to be territorial questions, in Punjab, the agitation for the demarcation of linguistic boundaries was deemed communal. Communalism, he said, had never been correctly defined, but “a convenient definition may be that whatever is said and done by the majority community in a democratic country or at least in India is pure nationalism and whatever is said by a minority community is communalism”.56 For Hukam Singh, the position between minority and majority was inherently undemocratic. Minorities had put their faith in the goodwill of the majority, but now had to look to it for everything, “for favours, for rights or for concessions”. The opposition to the safeguarding of Punjabi reflected, he felt, “the communalism of the majority”.57 Hukam Singh continued that with independence, everyone was now a nationalist. The conflict that had existed before 1947 between nationalism and communalism was now the question of majorities and minorities. Contrary to the accusations launched at them, minorities wanted “pure democracy” and not the aggressive politics of the majority that currently passed for nationalism but in fact was a politics of vested interests.58 In October 1949, the section of the draft constitution that provided for reservations for religious minorities in services came up for consideration in the Assembly. The Advisory Committee had voted earlier to abolish such provisions. Ambedkar proposed that the terms “minorities” and “classes” that had earlier been proposed should now be replaced with “Scheduled Castes”, “Scheduled Tribes” and “other backward classes”. Sardars Hukam Singh and Bhopinder Singh Man were bitterly angry. What had once been wholly supported was now being rolled back not just in part, but in its entirety. This was a farce of a democracy, they argued, and made an equal mockery of secularism. If reservations were given to backward castes but denied to religious minorities, what was to happen to those who were equally backward but denied safeguards and reservations because they professed a religion like Sikhism? “Would this be secularism?” Sardar Hukam Singh asked.59

Conclusions In its early deliberations, the CA endorsed a recommendation for the protection of minorities, a category that in 1947 incorporated both religion and caste, by reservations through joint electorates. In November 1949, as the review of the draft constitution drew to a close, the Assembly decided to limit this entitlement to Scheduled Castes and Tribes as well as to the more loosely defined category of “Other Backward Classes”. There would be no such provision for religious minorities as these were seen to foster the same political and social isolation that had led to partition. It was deemed the role of the secular state to ensure freedom of conscience and equal 176

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treatment before the law. The result, it was hoped, would be integration and the consolidation of national identity. By 1949, the broad consensus that had earlier existed among Muslim representatives on the issue of reservations had fractured. Hasrat Mohani, once among the most vocal in the defence of reservations for Muslims, distanced himself from this position, arguing that it would consign Muslims to the status of a permanent minority from which they would be unable to emerge. Some scholars have seen this as a retreat and as evidence of a lack of political direction among Muslims,60 others, the hegemony of the vocabulary of liberalism.61 However, I would suggest that questioning the commitment to separate representation was not a simple concession of defeat. Mohani argued that in delineating the size of the Muslim minority, the CA had re-inscribed the contours of the majority. This point was significant because it showed that majority and minority were defined together and that reservations would serve to confirm, rather than to undermine, their respective dominance and subordination. Similarly, Sri Nagappa’s assertion that he would be willing to forgo reservations in return for specific measures to address the economic and educational backwardness of Scheduled Castes also highlighted the desire to confront inequality rather than reaffirm identity. Mohammad Tahir articulated what many minority representatives in the CA believed when he said that the Constitution did not “reflect the condition of the country”. You would not know from looking at it, he said, that Sikhs and Muslims exist. Only Anglo-Indians, Tribals, Scheduled Castes and Hindus were visible: “It seems as if in this Constitution the Muslims as a community have no place in politics”.62 For Mohammad Tahir, this represented a fundamental failure of the Constitution. For the Constitution’s framers, in contrast, it was one of its core principles: The formal recognition of Muslims as a political category was beyond what a liberal democracy could accommodate. “Communalism” had always been the term attributed to the mobilisation around a non-national, religious identity. In this sense, its politics were particular, where nationalist politics were represented as universal. But Hukam Singh, Mohani and Ambedkar had all shown this supposedly universal position was itself particular. Hukam Singh’s outrage at what he called the “communalism of the majority” held a mirror up to precisely this issue. Reservations for the Scheduled Castes and Tribes and the so-called “other backward classes”, on the other hand, were justified as a protective measure. They were devised for positive effect, as a tool to create equality of opportunity in politically and educationally nascent populations with the aim of their integration into the new nation. It was thus between inequality and identity that the fault line of Indian liberalism emerged. State intervention represented by protective 177

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discrimination could be justified on the grounds that it would go some way towards dissolving caste boundaries and historic inequality. The same could not be possible for religious minorities, for their position lay not on a spectrum of historical development that offered the possibility of overcoming their minority status, but precisely in the iteration of their difference. Moreover, non-intervention in religion rather than its opposite was what defined a secular state. Thus, the secular state’s promise of integration was made possible by containing difference within its own sphere. The transition from nationalism to democracy required religious minorities to forgo any claim to inequality in favour of an idea of secularism which had narrowed around a reified understanding of “religion” and “religious identity”. Where reservations for the backward classes understood these communities to be socially dynamic, Indian liberalism served to fossilise the religious community allowing little potential for change. Thus, in contrast to Copland and Chiriyankandath, I would argue that it was not so much the lack of clarity around secularism that opened the door to the communalism that appeared later, for this takes as a given that “religion” was always a problem requiring a solution. Rather, a consideration of the CA debates shows that religious minorities argued against their own marginalisation, albeit unsuccessfully, which they saw as political, social and educational. Perhaps, then, it was the failure to address the marginality and exclusion on the part of religious communities that was written into the Constitution, rather than the failure to privatise religion, that has laid the ground for subsequent claims for equality to be articulated in the language of community.

Notes * Originally published in South Asia Research, 33:3. Copyright © 2013 SAGE Publications. All rights reserved. Reproduced with the permission of the copyright holders and the publishers Sage Publications India Pvt. Ltd, New Delhi. 1 Ian Copland, “What’s in a Name? India’s Tryst With Secularism”, Commonwealth and Comparative Politics, 48:2 (2010), 123–147. 2 J. Chiriyankandath, “Creating a Secular State in a Religious Country: The Debate in the Indian Constituent Assembly”, Commonwealth and Comparative Politics, 38:2 (2000), 2. 3 Shabnum Tejani, Indian Secularism: A Social and Intellectual History (New Delhi: Permanent Black, 2007). 4 The separate electorate for commercial interests differed in each of the three presidencies of British India in terms of which interests were identified for separate recognition and the proportion of seats to be reserved for each. They were not politically sensitive and rarely featured in the subsequent discussions on minority representation. 5 The Government of India Act, 1935, brought the term “Scheduled Castes” and “Scheduled Tribes” into use to correspond with the earlier “depressed classes” and “tribals”. The Government of India drew up a list or “schedule”

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of castes and tribes who would be beneficiaries of special representation in legislative bodies. 6 “Backwardness” was a term used to describe a community’s marginality in colonial institutions, in particular institutions of political representation (the legislative councils) and higher education (government colleges). The “backward classes” was never a clearly defined political category. It included the depressed classes but was not limited to them. The “General” category referred to members of the electorate who did not fall into a reserved category. 7 Rochana Bajpai, Debating Difference: Minority Rights and Liberal Democracy in India (New Delhi: Oxford University Press, 2010). 8 V. P. Luthera, The Concept of the Secular State and India (London: Oxford University Press, 1964); D. E. Smith, India as a Secular State (Princeton, NJ: Princeton University Press, 1963). 9 A. Beteille, “Secularism and Intellectuals”, Economic and Political Weekly, 29:10 (1994); A. A. Engineer, Communal Challenge and Secular Response (Delhi: Shipra, 2003); A. Nandy, “The Politics of Secularism and the Recovery of Religious Tolerance”. Reprint in R. Bhargava (ed.), Secularism and Its Critics (New Delhi: Oxford University Press, 1998 [1988]); A. Sen, “Secularism and Its Discontents”. In K. Basu and S. Subrahmanyam (eds.), Unravelling the Nation: Sectarian Conflict in India (New Delhi: Penguin, 1996). 10 S. Jha, “Secularism and the Constituent Assembly Debates, 1946–1950”, Economic and Political Weekly, 37:30 (2002), 559–566. 11 Bajpai, Debating Difference, p. ??; R. Bhargava, The Promise of India’s Secular Democracy (New Delhi: Oxford University Press, 2010); N. Chandhoke, Beyond Secularism: The Rights of Religious Minorities (New Delhi: Oxford University Press, 1999); Tejani, Indian Secularism. 12 Copland, “What’s in a Name?” 13 Ian Copland, “What’s in a Name? India’s Tryst With Secularism”, Commonwealth and Comparative Politics, 48:2 (2010), 128–129. 14 Ibid., pp. 131–133. 15 Ibid., p. 136. 16 Chiriyankandath, “Creating a Secular State in a Religious Country”. 17 Ibid., p. 14. 18 Bajpai, Debating Difference. 19 Bhargava, R. (2010) The Promise of India’s Secular Democracy. New Delhi: Oxford University Press. Chandhoke, N. (1999) Beyond Secularism: The Rights of Religious Minorities. New Delhi: Oxford University Press. 20 Tejani, Shabnum (2007) Indian Secularism: A Social and Intellectual History. New Delhi: Permanent Black. 21 Tejani, Indian Secularism. 22 G. Austin, The Indian Constitution: Cornerstone of a Nation (Oxford: Clarendon Press, 1966); Chiriyankandath, “Creating a Secular State in a Religious Country”. 23 Ambedkar had been elected as the representative for the Scheduled Caste Federation, but lost his seat with the partition of Bengal. He was re-elected by the Bombay Congress at the request of the Working Committee, G. Austin, The Indian Constitution: Cornerstone of a Nation (Oxford: Clarendon Press, 1966), pp. 12–13. 24 Memorandum on Minorities, March/April 1947, Austin, The Indian Constitution, pp. 362–368. 25 Memorandum, 15 April 1947, Austin, The Indian Constitution, pp. 381–383.

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6 Ibid., pp. 393–394. 2 27 Bajpai, Rochana (2010) Debating Difference: Minority Rights and Liberal Democracy in India. New Delhi: Oxford University Press. 28 Ibid., p. 66. 29 Jaipal Singh was an independent candidate, but came in the General category. 30 Constituent Assembly Debates (CAD), vol. V, p. 209. 31 CAD, vol. V, pp. 206–207. 32 CAD, vol. V, p. 235. 33 CAD, vol. V, p. 227. 34 CAD, vol. VI, 28 August 1947, p. 255. 35 Bajpai, Debating Difference, p. ??; Chiriyankandath, “Creating a Secular State in a Religious Country”, ??; Copland, “What’s in a Name?”, ??; Jha, “Secularism and the Constituent Assembly Debates”, ?? 36 CAD, vol. VII, 8 November 1948, p. 323. 37 CAD, vol. VII, 9 November 1948, p. 362. 38 CAD, vol. VII, 30 November 1948, p. 682. 39 B. Shiva Rao, The Framing of India’s Constitution, Select Documents Volume II (Delhi: Indian Institute of Public Administration, 1967), p. 259. 40 Ibid., p. 262. 41 Ibid., p. 296. 42 Shiva Rao, B. (1967) The Framing of India’s Constitution, Select Documents Volume II. Delhi: Indian Institute of Public Administration, p. 687. 43 Ibid., p. 693. 44 CAD, vol. VII, 30 November 1948, pp. 680–681. 45 CAD, vol. VII, pp. 701–702. 46 CAD, vol. VIII, 25 May 1949, p. 311, Appendix A, in a letter from Sardar Patel, Chairman, Advisory committee on Minorities, Fundamental Rights, etc., to the President, Constituent Assembly of India, dated 11 May 1949. 47 CAD, vol. VIII, p. 311. 48 CAD, vol. VIII, 25–26 May 1949, p. 337. 49 CAD, vol. VII, 4 January 1949, p. 1249. 50 CAD, vol. VII, 4 November 1948, p. 46. 51 CAD, vol. VIII, pp. 292–293. 52 CAD, vol. VIII, pp. 331–332. 53 Bajpai, Debating Difference, p. 146. 54 C. A. Bayly, Recovering Liberties: Indian Thought in the Age of Liberalism and Empire (Cambridge: Cambridge University Press, 2011); U. S. Mehta, Liberalism and Empire: A Study in Nineteenth Century British Liberal Thought (Chicago: University of Chicago Press, 1999). 55 CAD, vol. VII, 4 November 1948, p. 39. From Ambedkar’s motion on the draft constitution. 56 CAD, vol. IX, 12 September 1949, p. 1438. 57 CAD, vol. IX, p. 1439. 58 CAD, vol. IX, p. 1439. 59 CAD, vol. X, p. 235. 60 S. K. Chaube, The Constituent Assembly of India: Springboard of a Revolution (New Delhi: People’s Publishing House, 1976), p. 152. 61 Bajpai, Debating Difference, pp. 167–168. 62 CAD, vol. XI, 24 November 1949, p. 877.

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8 “WE THE PEOPLE” Seamless webs and social revolution in India’s Constituent Assembly Debates Kalyani Ramnath*

Legal and moral frameworks for constitution making Constitutions serve a variety of purposes. They are not merely documents that lay out the functioning of the state, its citizens and their respective rights and duties. These provisions also capture the pasts and futures of nations, as they appear at the time when they are framed, specifically at the end of a colonial era. Constitutional provisions are both idealist and pragmatic frameworks of governance that rest upon stated socially (re)constructed ideals. They are meant to keep nations rooted in their traditions, even as they attempt transformations. While analysing such constitutional frameworks, these texts are to be treated not merely as legal documents that create rules for state–citizen interactions but also, perhaps more importantly, as political designs with a symbolic purpose.1 The Constitution of India is not drafted in the name of citizens, although in practice, many of the Fundamental Rights (to speech, assembly or religion) may be claimed only by them. As with many other constitutions, it is drafted in the name of “We the People”, a phrase prominently placed in the Preamble to India’s Constitution, never again to appear in any of the other provisions. The category of ‘the people’ within the Constitution, therefore, has to be reconstructed by examining who the intended beneficiaries of this provision are. Earlier attempts to do so2 have used the well-known idea of imagined communities,3 but more extensive legal analysis is desirable.4 This chapter attempts to show the directions which such probing might take.

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The “seamless web” of social revolution In India’s situation, the constitutional text, drafted in the name of “the people”, was to bring about a social revolution, seeking to wipe out significant inequalities and discrimination that had characterised the colonial past.5 The framing of the Indian Constitution is depicted by Austin6 as an act of social revolution formally accomplished through introduction of the Fundamental Rights (now Part III of the Constitution) and the Directive Principles of State Policy (now Part IV of the Constitution). The Fundamental Rights chapter includes traditional liberal rights such as freedom of speech, assembly and worship, and cultural and educational rights, among others. The Directive Principles of State Policy were envisaged as duties of the state, basic principles fundamental to governance. While the Fundamental Rights demanded that the state should not interfere in certain kinds of individual or group activities, the Directive Principles left the implementation of their agenda to the discretion of the legislature and the executive branches of government. The Directive Principles do not just talk of grand economic policies, however; they also speak about welfare benefits to be extended to individuals as part of “the people”. Unlike the Fundamental Rights, these provisions were to be non-justiciable, that is not capable of being enforced through orders of a court. As one of the strands of the “seamless web”;7 however, an underlying vision of social revolution was also crucial to the understanding of the symbolic purpose of the Indian Constitution. This helps to explain why and how the Directive Principles have over time gained so much status and practical legal importance.8 The text of the Directive Principles, integral to this purpose, reveals several aspects to the nature of “the people”, ostensibly as participants in this social revolution. The final text of the Directive Principles as ratified by the Constituent Assembly clearly placed a duty upon the state to carry out improvements in agriculture, health, education and legal aid services and appeared to make social justice a priority for state governments and for development.9 It also called upon the state to implement a system of panchayati raj10 to attempt to put in place a uniform civil code,11 and to ban cow slaughter.12 Some directives sought to protect monuments of national importance13 and to promote international peace and security.14 At first glance, this looks like a random assortment of principles, presenting a confused, fragmented “moral” vision for a social revolution. However, it also presents a useful lens to examine the complex nature of this social revolution, specifically in terms of the people who drafted the Constitution, and to whom it is addressed as participants in the extended drafting process. Re-examining the Constituent Assembly Debates (CAD), this chapter identifies many traces and passing references to “the people”, often 182

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recreated through differing philosophies of the members. Some of these voices are ignored, others enthusiastically applauded. These references in the CAD may be traced back to ideas expressed in legal and political movements much prior to the creation of the Constituent Assembly. The resulting bricolage of constitutional provisions displays a fragmented image of “the people” in whose name the Constitution was drafted, an image largely attributable to people within and behind the Constituent Assembly.

“We the People” as productive lives As is well known, the Fundamental Rights Sub-Committee of the Constituent Assembly, which was entrusted with the drafting of the Directive Principles, witnessed vehement debates on several issues. Those relating to equality of pay, equality of work and provisions for the disabled and the elderly15 were already familiar as part of labour legislation. They included minimum wages, limits on working hours, night shifts and protection for women and children who worked.16 Provisions relating to primary education, organising agriculture and animal husbandry along scientific lines, prohibiting cow slaughter and so on generated more heated discussion. Particularly the enactment of a uniform civil code17 was opposed vehemently by assembly members Mohammed Ismail Saheb and Pocker Sahib.18 The Fundamental Rights Sub-Committee eventually moved this provision from being a Fundamental Right to a Directive Principle in view of opposition from other members, such as Hansa Mehta, Raj Kumari Amrit Kaur and M. R. Masani. Objectors to the inclusion of a uniform civil code pointed out that it would “encourage” the state to break its guarantees of freedom of religion in Article 19 of the Draft Constitution. Further, matters such as marriage and inheritance would remain integral to the practice of religious communities. K. M. Munshi and Alladi Krishnaswami Ayyar, who responded to these objections, said that in any case, the Constituent Assembly had voted to transgress personal laws in the name of social reform. However, the Constituent Assembly had already placed “personal laws” beyond the pale of judicial review under Article 13(2). Thus, it was ultimately agreed that a uniform code would be enacted only with the consent of all communities.19 Examining why some of these issues were placed in the Fundamental Rights chapter and others in the Directive Principles of State Policy, we also see why “the people” are understood in a more fragmented manner than the Preamble or the Fundamental Rights chapter indicate. To investigate these ruptures, one might look to the debate between H. V. Kamath and B. R. Ambedkar (Indian National Congress members from the Central Provinces and Berar and Bombay respectively) on the question 183

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whether the Directive Principles, as mere moral precepts, served any purpose within a constitutional text at all.20 Ambedkar drew out distinctions between “legal” and “moral” force of various constitutional provisions, arguing that the latter is equally important, even if placed in an ostensibly legal document. If power is granted, he argued, it must be accompanied by instructions regulating its exercise. Whoever captures power should be answerable to the people and use the principles as they deem fit, having to answer for their actions in elections. Kamath, on the other hand, explicitly invoked democratic ideals. He argued that democracy must extend to populations beyond those who participate in elections or bring disputes to courts of law.21 This rather critical difference of perspectives between these two members is highly instructive. For Kamath, the Directive Principles would speak to the duty of the state to people who could not assert their rights, including the politically disempowered as well, whereas this does not appear to be the case in Ambedkar’s understanding. However, while the politically disempowered of Kamath’s imagination, outside the bounds of courts or councils, are to receive benefits from the state, these should be granted only upon fulfilling certain expectations. The Directive Principles thus reveal not only an imagination of “the people” to whom duties are owed by the state, they simultaneously reveal the state’s expectations from them. Krishna Chandra Sharma, a member from the United Provinces, argued that the Constitution, when referring to development of the people, is also making a reference to the building of a strong and healthy nation. He stated explicitly that there is a need for able-bodied people to allow India to compete with the wealthiest nations in the world: In the modern context, the wealth of a nation consists primarily in the limbs of its young men, their character and brain and their working capacity. Now, in this Constitution, there is not a single item or provision anywhere to make the people work or to make them grow. You have got directive principles. There, the State endeavours to give primary education and to find work and employment. The State does not take the responsibility to make the people work, on the principle that he who does not work, neither shall he eat. This is an important question. We should have provision for enforcement of work for able-bodied citizens.22 Notions of wealth and productive lives are central to this debate. Similarly, in his note to the Fundamental Rights Sub-Committee which discussed the draft of the Directive Principles before it came up for debate in the assembly, K. T. Shah, a Congress member from Bihar, outlined how 184

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the concept of living with dignity is tied to working with dignity. The state is obligated to provide work, he said, but working, honourably and productively, is also an “inescapable” obligation of the citizens of India.23 He remained committed to this vision throughout the CAD.24 Another Congress member from Bombay, K. M. Munshi, feared that the high-minded ideals of a socialist thinker may not be enough to displace the feudal notions ingrained in India at the time.25 Constitutional obligations of both state and citizen were to be more solidly oriented towards productivity.26 The slippages in the constitutional text in describing the subject of these provisions offer insights into the nature of “the people”. Education, public assistance and creation of just and humane conditions of work for everyone and a just social order are what the state owes to its people. Adequate means of livelihood and free legal aid are promised only to “citizens”. The same was the case with the proposed uniform civil code. Finally, a living wage and participation in the management of industry are promised only to workers, reflecting an emphasis on providing equal opportunities for productive labour. This also explains the emphasis on nutrition and health in the Directive Principles.27 Therefore, although the Directive Principles dealt with economic development, they also took into account bodily welfare. The expectations are varied but basically oriented towards the creation of productive lives. The social consequences of living in a nation-state are, then, not only firmly tied to official recognition of a political identity but are also rooted in the ability of “the people”, in all the varied understandings of that phrase, to contribute to the building of the nation-state. The state may well choose to ignore non-productive lives while embarking on different aspects of its social revolution.

“We the People” as antecedents A close reading of the text thus shows that there is an extremely fragmented picture of “the people” as the subject of India’s Constitution. To examine why particular imaginations of a social revolution were included in the text and not others, it is useful to survey demands made for state intervention in socio-economic matters during the freedom struggle. There was an incipient idea during this time of carrying out a social revolution through constitutional reform. These ideas found expression in the CAD to varying extents, particularly by the people behind the Constituent Assembly, who are evidently as responsible for shaping the provisions of the Directive Principles as the members themselves. The first category of such “people” could be political representatives and organisations, agents who included civil liberties and social reform as items requiring equal attention from the colonial state. The nationalist 185

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elite, particularly those belonging to the Congress, played a pivotal role in advancing these demands. In the 1920s, this took on many forms, from campaigning for removal of press controls, such as the Press Act of 1910, to challenging the infamous Rowlatt Act of 1919, which provided for indefinite preventive detention. The Nehru Report of 1928, demanding a dominion Constitution, contained an entrenched Bill of Rights with provisions relating to free and fair elections, freedom of religion and expression, and equality of the sexes, among others. These demands were also part of the All India Trade Union Congress Resolution in the same year. The Karachi Resolution of the Indian National Congress in 1931 referred to a “living wage” and other welfare benefits for industrial workers and women.28 The 1933 Declaration of Fundamental Rights in a Proposal for Indian Constitutional Reform included provisions for the protection of women and children. The Government of India Act of 1935 (commonly understood to be the precursor to the 1950 Constitution) did not contain an entrenched Bill of Rights. But in Article 298, it stated that persons in British India shall not be discriminated against on the grounds of religion, place of birth, descent or colour with respect to public office, the enjoyment of property and the carrying on of trade, occupation or profession. The second category of “the people” whose ideas were reflected in the particular form of social revolution is the Indian capitalist class, whose influence on the political moves of the Constituent Assembly has remained less studied.29 Planned economic development received a boost during the 1940s in India with the rise of Congress leaders sympathetic to “socialist” causes. However, these leaders were careful to ensure that planning was not seen to be possible only under socialism.30 In 1938, the National Planning Committee with Nehru as chairman also included K. T. Shah, an economist, who would go on to be part of the Fundamental Rights SubCommittee which framed the Directive Principles.31 H. V. Kamath was a secretary of the committee, and was also part of the Fundamental Rights Sub-Committee. “Real” planning, according to the report of the committee in 1949, anchored in great measure by K. T. Shah, could come about only with the simultaneous realisation of political and economic freedom. Setting a ten-year limit for the attainment of the plan’s goals, the report also emphasised education, developmental research, labour legislation and population control, measures that are reproduced almost identically in the Directive Principles. While some members of the Indian capitalist class had denounced the socialist programme as a threat to property, liberty and religion, others resolved to put in place a healthy capitalism.32 The Post War Economic Development Committee of major industrialists of the time, including Ghyanshyam Das Birla, Purushottamdas Thakurdas, Lala Shri Ram, 186

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Ardeshir Dalal, A.D. Shroff, Kasturbhai Lalbhai and the economist John Mathai, came up with a set of recommendations, the so-called Bombay Plan, in 1944 and 1945. A Department of Planning and Development, of which Ardeshir Dalal was a member, was set up by the Viceroy’s Council in 1945. Here, private enterprise was subjected to strict public control, possibly an attempt to create healthy capitalism. Notably, the Hindustan Times referred to it as a “bloodless revolution”.33 In the elections in 1946, the Indian National Congress once again came to power in an overwhelming eight out of eleven provinces in British India. With the backing of the Indian capitalist class as well as the strong influence of Nehruvian ideas which were rapidly becoming prominent, the Industrial Policy Resolution of 1948 detailed which industries required state intervention and which others would be open to investment by private capital. From the foregoing broad survey, it appears that the ideas of social revolution bore a strong resemblance to demands made and institutions created before the Constituent Assembly. Indeed, even the textual form of the Directive Principles was the work of B. N. Rau, Constitutional Adviser to the Constituent Assembly, who was not a member of the Constituent Assembly. Rau had made a “study tour” of various countries prior to the drafting of the Constitution and compiled Constitutional Precedents, materials relating to comparative constitutional law which were placed before the Drafting Committee.34 He referred to the Directive Principles as a kind of Fundamental Right that cannot be enforced in a court. This was an idea that was gaining acceptance in international organisations such as the International Labour Organization and the United Nations, as well as countries like the USSR and Ireland.35 This brief survey of developments must suffice here to note how the ideas that were finally reflected in the provisions of the Directive Principles have their origins in particular interest groups.

“We the People” as incidents Rau proposed an amendment in the Constituent Assembly to the effect that if there was any conflict between the Directive Principles and the Fundamental Rights, as in the case of a particular statute, then the Directive Principles as emblematic of “public welfare” should prevail.36 This, however, was not adopted. Why did the Fundamental Rights at first prevail over the Directive Principles, till the Supreme Court of India eventually decided that the two were to be seen as setting “legal” limits on each other? The debates on the Directive Principles and the discussions among “the people” within the Constituent Assembly explain why the constitutional document was seen as comprising a “legal” and a “moral” part, and what was an acceptable content for each. 187

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The Directive Principles were adopted largely as a result of Ambedkar’s arguments in their favour. However, this was not before heated debate, as mentioned before, on the usefulness of a non-justiciable part in the Constitution. There was support for the Directive Principles from Congress members such as Alladi Krishnaswami Aiyar, B. R. Ambedkar, K. M. Munshi and K. T. Shah. Evident in their speeches is the belief that the Directive Principles are integral to a social revolution. For instance, note the words of Purnima Banerji, a member from the United Provinces: Sir, in the Directive Principles of State Policy we have said that although they may not be enforceable in a court of law, they are nevertheless fundamental for the governance of this country and we have in articles 38 and 39 stated that the economic policy of the country will be worked in such a manner as would subserve the common good. To quote the exact words, we have said ‘that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment’ . . . By the inclusion of these clauses I personally feel that this Constitution has provided us with the means for changing the structure of society.37 The first issue to be brought up in the debates on Directive Principles is thus their perceived “usefulness”. Many members of the Constituent Assembly felt, however, that the language of the Directive Principles was too vague. Amendments were moved by Damodar Swarup Seth and Naziruddin Ahmed to either make them obligatory or to remove them from the text of the Constitution altogether.38 The second issue concerned the enforceability of the Directive Principles in a court of law. Syed Karimuddin Ahmed and H. V. Kamath moved amendments on 19 November 1948 to delete “Directive” and to replace the word with “Fundamental”, with a view to making these Principles enforceable in a court of law. Nowhere did the idea of these Principles being moral injunctions stick more than in relation to the ban on cow slaughter and panchayati raj. These were attributed to the influence of Gandhian ideas, which had, by this point, been largely sidelined – at least so it seemed. Although Gandhi himself engaged with the constitution-making process until 1946, by 1947–50 the decentralisation model had been relegated in the CAD to the back-burner.39 There was little space for decentralisation in Nehru’s or Ambedkar’s vision of the modern nation-state.40 Bearing in mind that the panchayati raj provisions ultimately did make it to the final draft, however, 188

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it is clear that Gandhi’s presence in the Constituent Assembly was palpable, albeit marked by his physical absence. Gandhi’s “social revolution” finds a place in the impassioned speeches of Mahavir Tyagi: I submit that Gandhiji’s foremost plank of constructive programme was prohibition (cheers) . . . I must submit that the Constitution as it is, and I have repeated this many times before, is devoid of Gandhiji’s ideas. . . . If we cannot accommodate even the idea of prohibition in our Constitution, then what else have we been sent here for? We have been talking of revolutions, and about all sorts of progress. But if we cannot have even this small reform in our Constitution; the book will not be even worth touching with a pair of tongs.41 S. V. Krishnamoorthy Rao, the member from the princely state of Mysore, thought otherwise. She also pertinently stated that “it is for the future electors to elect the right kind of persons, who will work the Constitution in the interests of the people”. Stating that the responsibility, therefore, lies with the people,42 she argued that Gandhian ideals remained alive and well within the constitutional framework in the form of the Directive Principles: Then there was a charge that Gandhian principles have been sacrificed. I already submitted that we have embodied provisions for removal of untouchability, for national language, for communal harmony and for goodwill and guarantees to minorities, encouragement of Gram Panchayats and village industries and for protection of milch cattle. These are the planks on which Gandhism flourished in this country and it created a non-violent revolution in this country. If these principles have been embodied in the Constitution, I want to ask how Gandhism has been sacrificed in this Constitution.43 Members such as Thakur Dass Bhargava took a narrower perspective and directly related the health of the nation to the prohibition of cow slaughter, quoting lengthy statistics with figures of cattle slaughtered to this effect.44 In one of various public consultations conducted by the Constituent Assembly, Guha45 has recorded how the All India Varnashrama Swarajya Sangh had recommended that the Constitution be predicated on “ancient Hindu works” and, in particular, recommended the banning of cow slaughter and of liquor. B. G. Kher, a member elected from the Bombay Presidency, spoke of how these “bad habits” would be detrimental to the health of the population.46 Jaipal, on the other hand, who represented 189

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the tribal classes, argued that drinking was an essential part of the cultural lives of many tribal populations in the country. This multivocal debate over the supposed “moral” content of the constitutional provisions makes it easier to appreciate why they were finally accepted, but kept as non-justiciable. Time and again, the debates on the Directive Principles brought questions of law, religion and culture to the forefront and thereby highlighted emerging contradictions within various visions of proposed social revolution. The importance given to religion and culture, and how they might threaten the envisaged social revolution, is highlighted by the fact that there was even an amendment to delete the entire Directive Principles part after discussion on the uniform civil code.47 Thus, the ways in which deeply contentious issues became “principles” rather than “rights” is indicative of the larger tensions inherent in the constitution-making process among the various “people” within the Constituent Assembly. Nigam48 makes pointed reference to the polyphonic nature of the Constituent Assembly; indeed, nothing is a starker example than the discussions on the Directive Principles. While the amendments that were finally adopted were those supported by Congress, the number of disparate opinions within the CAD presented an opportunity to examine the different ways in which constitutional text and polity could have been structured, the what-could-have-beens of Indian constitutionalism.

“We the People” as exclusion The Directive Principles are, however, not just about the ideas of social revolution addressed to “the people” in whose name the Constitution is drafted, but are also a testament to “the people” behind and within the Constituent Assembly. We have seen earlier that a productive people, alternatively understood as citizens or workers, came to be seen as imperative to building a modern nation-state. These ideas of productivity may be traced back to the various political postures both behind and within the Constituent Assembly, be it the Indian capitalist classes or those advocating Gandhian ideals. The Directive Principles, therefore, are ultimately speaking to a multitude. They are addressed not just to “the people” in whose name the Constitution is drafted, but to citizens, workers, women and men in differing degrees. What is common to this understanding is that all are supposed to be part of a politically empowered, productive people. Perhaps the greatest implication of these distinctions that the constitutional text makes is that the nation-state could choose to exclude many others in its grand march towards a transformed social situation, for example by branding the undocumented as “illegal” or treating the poor as dispensable. 190

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Conclusions: not the final word Unpacking the rhetoric of “the people” in whose name constitutions are drafted dramatically exposes the dilemmas of postcolonial nations at “historical” moments, reflecting struggles to capture social revolutions through legal means. It would hardly be the final word of a nation’s dreams and aspirations. In India’s case between 1947 and 1950, there was clearly no easy or readily agreeable answer. Perhaps this is a partial explanation for why “the people” as addressees of the constitutional text remain secondary to “the people” as legal draftsmen or as political leaders lobbying for specific forms of change through constitutional means. However, within the first 30 years of the operation of the Indian Constitution, the Directive Principles came to be seen to set limits on, and at the same time to expand, the scope of the Fundamental Rights. Rau’s far-sighted proposed amendment placing the Directive Principles above the Fundamental Rights has today become a partial reality. What is of potentially much greater interest to a surveyor of contemporary legal and political developments in India is that neither the legislature nor the executive (the main elements of the “state” as understood in traditional constitutional provisions) has been at the forefront of implementing the letter and spirit of the Directive Principles. It is another part of the Indian state, the higher judiciary, unelected by the “people” and ostensibly impartial to the demands of “the people” within and behind governments, that finally perceived the constitutional provisions of a social revolution as not possessed of either “legal” or “moral” parts, but as indivisible and necessarily interconnected. Exploring this trajectory and the critically relevant aspect of analysing postcolonial Indian constitutional law would lead us towards an examination of judicial activism in Indian law. That examination, of course, means embarking on a rather different chapter altogether, though ultimately focused on a closely related topic. One can clearly see in retrospect how the partly deliberate silences amid the cacophony of voices in the constitution-making process of the CAD by a certain class of “the people” turned in due course into loud and critical comments of growing dissatisfaction with the Indian legal system. This led subsequently to different trajectories in the practice of constitutional law by the higher judiciary after India’s national emergency in the 1970s. Discussing that particular topic would clearly show the ways in which the courts both followed, and deviated from, the intentions of the constitution makers about justice and social revolutions in postcolonial India. In retrospect one may be not too wrong to perceive a seamless movement between arduous earlier processes of debate and constitution making 191

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and even more stressful later multi-agency mechanisms of ensuring at least the most basic rights for the people of India. S. P. Sathe49 suggested that saying that sovereignty lies in the Indian “people” is to engage in a mere academic exercise and to refer to something emotive. This chapter suggests that there has been a practical dimension to this as well, as we understand better today how understandings of life, dignity and liberty were imagined and transformed, as courts in the 1980s started reading the Directive Principles into the Fundamental Right to life under Article 21 of the Constitution. Therefore, these conceptual distinctions or fragmented images are not to demonstrate that the idea of a “people” was marginal to the constitutional text, but only to remind ourselves as we work and practise with the constitutional text today, of their overwhelming importance.

Notes * Originally published in South Asia Research, 32:1. Copyright © 2012 SAGE Publications. All rights reserved. Reproduced with the permission of the copyright holders and the publishers Sage Publications India Pvt. Ltd, New Delhi. 1 For relevant background reading and analysis, see Hannah Arendt, “The Revolutionary Tradition and Its Lost Treasure”. In H. Arendt (ed.), On Revolution (New York: Viking Press, 1963); Granville Austin, “The Expected and Unintended in the Working of a Democratic Constitution”. In Zoya Hasan, E. Sridharan and R. Sudarshan (eds.), India’s Living Constitution: Ideas, Practices and Controversies (New Delhi: Permanent Black); Granville Austin, Working a Democratic Constitution: A History of the Indian Experience (New Delhi: Oxford University Press, 2003); Chandra et al., India After Independence, 1947–2000 (New Delhi: Penguin Books); Partha Chatterjee, “Populations and Political Society”. In Partha Chatterjee (ed.), The Politics of the Governed: Reflections on Popular Politics in Most of the World (New Delhi: Permanent Black, 2004); Sujit Choudhary, The Migration of Constitutional Ideas (Cambridge, MA: Cambridge University Press, 2007); M. P. Jain, Outlines of Indian Legal History (New Delhi: Universal Publishing House, 2009); Sunil Khilnani, The Idea of India (New York: Farrar, Straus and Giroux, 1999); Frederick King, “India’s New Constitution”, The Irish Monthly, 78:921 (1950), 110–113; K. M. Munshi, Indian Constitutional Documents. Volume II (Bombay: Bharatiya Vidya Bhavan, 1967); Sarbani Sen, The Constitution of India: Popular Sovereignty and Democratic Transformations (New Delhi: Oxford University Press, 2007); and B. Shiva Rao, The Framing of India’s Constitution: A Study (Nashik: Government of India Press, 1968). 2 David Gilmartin (2007), “Election Law and the ‘People’ in Colonial and Postcolonial India”. In Dipesh Chakrabarty, Rochona Majumdar and Andrew Sartori (eds.), From the Colonial to the Postcolonial: Indi and Pakistan in Transition (New Delhi: Oxford University Press), pp. 52–82. 3 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism. Revision (London: Verso, 1991).

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4 See also Bruce Ackerman, We the People: Foundations (Cambridge, MA: Harvard University Press, 1993). 5 Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi: South Asia Books, [1996] 1999); Shibanikinkar Chaube, Constituent Assembly of India: Springboard of Revolution, 2nd ed. (New Delhi: Manohar, 2000). 6 Austin, The Indian Constitution. 7 Ibid. 8 See Upendra Baxi, “Directive Principles and Sociology of Indian Law: A Reply to Dr. Jagat Narain”, Journal of the Indian Law Institute, 11:3 (1969), ??; S. K. Das, “The Founding Moment: Social Justice in the Constitutional Mirror”, in Ashok Aggarwal and Bharat Bhushan (eds.), Justice and Law: The Limits of the Deliverables of Law (New Delhi: Sage Publications, 2009), pp. 245–272. 9 K. G. Kannabiran, Wages of Impunity: Power, Justice and Human Rights (New Delhi: Orient Longman, 2004); and Gail Omvedt, Dalits and the Democratic Revolution (New Delhi: Sage Publications, 1994). 10 Article 40. 11 Article 44. 12 Article 48. 13 Article 49. 14 Article 51. 15 Articles 32 and 33, Draft Constitution of India, 1947. 16 Tirthankar Roy, The Economic History of India 1857–1947 (New Delhi: Oxford University Press, 2006), p. 244. 17 Then Article 43, Draft Constitution of India, 1947. 18 Shefali Jha, “Secularism in the Constituent Assembly Debates, 1946– 1950”, Economic and Political Weekly, 37:30 (2002), 3175–3180. 19 Ibid. 20 Lawyerly debates in this respect would focus on the distinction between positive law as Austinian “command of the sovereign” and the connection, challenged by many legal positivists, of law and morality. 21 For details, see the CAD of 15 November 1948, Book 2, Volume VII and 1 September 1949, Book 4, Volume IX. 22 CAD, 5 November 1948, Book 2, No. VII: 230. Intriguingly, the phrase “able-bodied” has resurfaced in judicial decisions during the 1990s about whether Hindu men should be able to claim maintenance from their wives, with the answer clearly being in the negative. For details, see Werner Menski, Hindu Law. Beyond Tradition and Modernity (New Delhi: Oxford University Press, 2003), pp. 539–541. 23 See K. T. Shah, “A Note on the Fundamental Rights”, 23 December 1946, found in Shiva Rao, The Framing of India’s Constitution: Select Documents. Volume II (New Delhi: N.M. Tripathi Private Limited, 2004), pp. 36–55. 24 See K. T. Shah’s comments on the Draft Report, 10 April 1947, found in Shiva Rao (2004, pp. 153–157). 25 See K. M. Munshi’s Note and Draft Articles on Fundamental Rights, 17 March 1947 in Shiva Rao (2004, pp. 69–80). 26 R. C. Dutt, Socialism of Jawaharlal Nehru (New Delhi: Abhinav Publications), p. ??; S. A. Sankaran, History of Economic Thought (Madras: Margham, 1987).

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7 For details, see CAD, 18 November 1949. 2 28 The first of the labour legislations, the Workmen’s Compensation Act, was passed in 1923, though labour laws for factory workers have a much earlier history (Roy, 2006). Subsequently, the Pension Fund Act was enacted in 1925 and the Maternity Benefit Act followed in 1929. 29 Aditya Mukherjee, “Indian Capitalist Class and Congress on National Planning and Public Sector 1930–47”, Economic and Political Weekly, 13:35 (1978), 1516–1528. 30 Jawaharlal Nehru to K. T.Shah, 13 May 1939. In Selected Works of Jawaharlal Nehru, vol. 9 (1976), p. 373, www.oup.co.in/category.php?cat_ id=143757 (last accessed 13 December 2011). See also Shriman Narayan Agarwal, The Gandhian Plan of Economic Development for India (Bombay: Padma Publications, 1945). 31 Bidyut Chakrabarthy, “Jawaharlal Nehru and Planning, 1938–1941: India at the Crossroads”, Modern Asian Studies, 26:2 (1992), 282. 32 Sumit Sarkar, Modern India 1885–1947 (New Delhi: South Asia Books, 1989), p. 531. 33 See “A Brave Attempt”, Hindustan Times, 17 January 1945. Reprinted in Sabyasachi Bhattacharya and Bimal Prasad, eds., Towards Freedom. Documents on the Movement for Independence in India 1945 (New Delhi: Oxford University Press, 2008), p. 983. 34 B. N. Rau, Constitutional Precedents: First Series (New Delhi: Constituent Assembly, 1947); B. N. Rau, Constitutional Precedents: Third Series (New Delhi: Constituent Assembly, 1947). 35 B. N. Rau, Constitutional Precedents: First Series (New Delhi: Constituent Assembly, 1947), pp. 21–22. At this point, Rau also includes a section on the Duties of Citizenship in Chapter XI which discusses a variety of pre– World War II constitutions which talk about the duty to render military service, raise children and so on. However, this chapter on Fundamental Duties was dropped in the CAD. Only later, through a constitutional amendment in 1976, were the Fundamental Duties brought back into the Constitution. Rau’s discussion on the protection of rights of women and children also makes several references to the Directive Principles of State Policy and he refers to the Declaration of Fundamental Rights adopted by the Indian National Congress in 1933. 36 H. M. Seervai, Constitutional Law of India. Volume II (New Delhi: Universal), pp. 1925–1926. 37 See CAD, 24 November 1949, Book No. 5, Volumes X–XII, p. 880. 38 For details, see CAD, 25 November 1948, Book 2, Volume VII. 39 Judith Brown, “The Mahatma in Old Age: Gandhi’s Role in Political Life, 1935–1942”. In Richard Sisson and Stanley Wolpert (eds.), Congress and Indian Nationalism: The Pre-Independence Phase (Berkeley: University of California Press); David Hardiman, Gandhi in His Time and Ours: The Global Legacy of His Ideas (London: C. Hurst and Company). 40 B. R. Nanda, Jawaharlal Nehru: Rebel and Statesman (New York: Oxford University Press). 41 See CAD, 19 November 1948, Book 2, Volume VII, p. 499. 42 See CAD, 22 November 1949, Book 5, Volumes X–XII, p. 795. 43 See CAD, 22 November 1949, Book 5, Nos. X–XII, pp. 811–812. 44 See CAD, 24 November 1948, Book 2, Volumes VII, pp. 568–570.

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45 Ramachandra Guha, India After Gandhi: The History of the World’s Largest Democracy (New Delhi: Ecco, 2007), p. 127. 46 See CAD, 18 November 1949, Book 5, Volumes X–XII, p. 666. 47 For details, see CAD, 23 November 1948, Book 2, Volume VII. 48 Aditya Nigam, “A Text Without an Author: Locating Constituent Assembly as Event”, Economic and Political Weekly, 39:24 (2004), 2107–2113. 49 S. P. Sathe, “Judicial Review in India: Limits and Policy”, Ohio State Law Journal, 35 (1974), 870–899.

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9 INDIA’S REPUBLICAN MOMENT Manjeet Ramgotra

During India’s struggle for freedom, Jawaharlal Nehru advocated India’s complete independence and the creation of a popularly sanctioned Constituent Assembly to determine the constitution. As India was poised to create its constitution, Nehru announced its resolve to be an independent sovereign republic.1 This resolve was not without controversy for it framed the type of rule and governance that India would adopt; as such, it formed the basis of the first debates in the Assembly. Nevertheless, the Objectives Resolution which stated that the constitution be framed for a sovereign Indian republic was formally passed on 22 January 1947; and the Indian Constitution adopted on 26 November 1948 declared: “We, the people of India, having solemnly resolved to constitute India into a sovereign democratic republic . . . adopt, enact and give to ourselves this constitution”.2 The principles underpinning Nehru’s call for a republic were threefold. First, it opposed both monarchical and imperial rule. Second, it established the principle of popular sovereignty whereby “all power and authority . . . are derived from the people” and third, it would create a state that would participate with other equal states in the international order. To Nehru, “a free India can be nothing but a republic”.3 The vision that India become an independent sovereign republic has a history in Nehru’s thinking and actions. He initially called for the complete military, economic and political independence of India at the Madras Congress Session in 1927 and provoked much controversy.4 Even today the Indian state remains controversial for it is seen as a Western construct that replaced one oppressive regime with another and has not fulfilled goals of universal freedom and equality in the place of social hierarchy and political elitism.5 Yet when Nehru developed his ideas, he saw the republic as the means through which to gain political and social freedom as well as equal standing between individual citizens and between equal states. He 196

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redeployed republican ideas in a new context and reshaped the contemporary significance of freedom and republicanism. Nehru promoted India’s complete independence which hinged on being able to create and adopt its own constitution on the authority of the people. The creation of an elected constituent assembly to draft a constitution for India was one of his early demands that informed his republicanism, and, equally, his republican convictions informed his staunch insistence that India establish such an assembly. To Nehru, the only way to found “real democratic freedom”, for the Indian people to exercise their right of selfdetermination, was “through a Constituent Assembly elected by an adult franchise”.6 The alternatives, he argued, were for India to remain more or less under the control of the British Parliament as a Dominion of the Commonwealth; to collapse into fascism, military dictatorship, chaos or to adopt Soviet Communism.7 At the heart of his argument for a republic is the notion of popular sovereignty whereby the power and authority to rule reside in the body of the people that is actualised through the creation of a constitutional state established by the people through an elected and representative assembly. The sovereignty of the people is in the constitution. When Nehru presented his resolution on the objects and aims of the Indian Constitution, he expressed regret that the Constituent Assembly was not exactly what many Indians had wanted, that it was limited and had conditions placed upon it by the British Government. In short it was not the independent body that had been hoped for. Moreover, the Indian princely states and the Muslim League did not attend the Assembly. Nevertheless, Nehru presented the object that India be a republic. This idea was contentious for it was felt that the notion of republican rule and popular sovereignty would further alienate the Indian princely states. Nehru argued that the people of these states be given the suffrage to determine their rule, whether they wanted to be part of the Indian republic as a republic or under the rule of the prince. This suffrage and the notion of republic were seen as contradicting the rule and raison d’être of the maharaja and it was feared that these states would not join the Indian Union. A republic entailed a specific type of governance that repudiated the rule of a single person and placed sovereignty in the body of the people.8 Nehru made it clear that he opposed, in modern times, antiquated autocratic princely rule: “the idea of the sovereignty of the people, which is enshrined in this Resolution, does not commend itself to certain rulers of Indian States. That is a surprising objection. . . . It is a scandalous thing for any many to say, however highly placed he may be, that he is here by special divine dispensation to rule over human beings today. This is a thing which is an intolerable presumption on any man’s part, and it is a thing which this House will never allow and will repudiate if it is put before it”.9 However, in the Objectives Resolution, he 197

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does make clear that if by popular suffrage the people chose to maintain the rule of the prince and to be part of the Indian Union as such it would be acceptable.10 The other worry was that as a republic, India would not be part of the British Commonwealth of Nations. Nehru counters this on two points. First, simply being a republic did not bar membership to the Commonwealth as the Irish Republic was part of the Commonwealth. Second, international order was being constituted anew in the aftermath of the war. The creation of the United Nations and the acquisition of independence of many colonised states meant that India had a significant role to play in this new order, which was not merely as part of the British Commonwealth. Nehru situated India as part of a world order of equal independent states that would cooperate in the pursuit of peace. He realised that spheres and blocks of influence were beginning to structure the post-war world order. Yet he maintained that India’s foreign policy should be “to remain independent and free of all of these blocks and that it [India] wants to cooperate on equal terms with all countries”. Furthermore, he considered that India had a responsibility to the world to demonstrate leadership, to promote the freedom, progress and welfare of mankind both in Asia and across the world.11 Nehru’s vision of an Indian republic promoted a free type of governance, popular sovereignty along with social and economic rights and significant role in the world. To achieve these goals India had to constitute itself as an independent state through an elected assembly. The Constituent Assembly is an integral part of Nehru’s republicanism. Therefore examination of Nehru’s republicanism in his pre-independence writings and speeches contributes a deeper understanding of his thinking as expressed in the Constituent Assembly Debates and why he proposed that India be a sovereign independent republic. In mainstream scholarship, republicanism is understood as a theory centred on the values of virtue, egalitarian participation and the freedom from domination. There has been a growing shift to consider republicanism as freedom from domination analytically and to remove it from historical roots. Although most studies situate republicanism in historical context, these do not go beyond the transatlantic tradition and the determining moments of the American and French revolutions.12 Yet Nehru’s thought takes republicanism beyond these moments and into the twentieth century. In contrast to the analytical understanding of republicanism, Nehru puts republican theory into practice. He firmly roots republicanism in both time and place and readapts both its form and idiom to the specific moment. Nehru reiterates virtue and freedom. He recognises that through active participation in resisting imperial and princely domination along with the 198

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willingness to sacrifice oneself in order to gain self-determination (swaraj) individuals acquired both a civic spirit and national identity. In addition, through resistance to a dominatory power, individuals would feel their freedom and eventually realise it through the institutions of a free republican India. Yet Nehru’s republicanism did not end here; he envisaged its practice through state institutions including the separation and balance of powers, law and the peaceful coexistence of equal republics. In effect, Nehru brings the theoretical and practical elements of republicanism together and furthers our understanding of republics in history and in our world. Nehru considered himself both republican and socialist; in the late 1920s he presided over the short-lived Republican Congress that sought to promote Indian independence as a republic.13 But it was in the early 1930s, while in prison, that he composed his Glimpses of World History and consolidated his understanding of republicanism. In this work, he examines various republican foundings both in history and across the world, ranging from ancient Rome to the United States to Spain, China and Syria. His writings are informed by a vast range of thinkers from all over the world including republican thinkers such as Montesquieu and Rousseau.14 In presenting a republican reading of Nehru’s political thought, this study examines some of the philosophical sources of his ideas and considers how concepts from various times and places merge to create a powerful restatement of republican theory. Nehru is a difficult thinker to situate within a single philosophical school. Most interpretations emphasise the liberalism and radicalism in his socialist outlook.15 Few studies look at the republican aspects of his thought. Some legal works do examine the constitutional aspects of the Indian republic,16 but those go only so far and do not consider Nehru’s ideas in light of a history of republicanism. There is indeed a lack of theoretical analysis of republicanism in Indian political thought. Equally, if one looks at the Cambridge School, not only does their understanding of republican ideas focus on the history of political thought, but, further, if one assesses most studies of republicanism, they culminate in the American and French revolutions and do not extend beyond the nineteenth century.17 This chapter analyses the republican foundations of the world’s largest and most successful postcolonial democracy.18 Five components comprise Nehru’s republicanism. First, he conceptualises the republic as an independent entity opposed to external domination or imperialism. He draws on the American experience of founding a free and independent republic. He describes this as political republicanism and associates it with the establishment of a constitution that allows the state to be self-governing. Second, he advances the idea that republics oppose arbitrary and absolute power. The French Revolution provides an instance 199

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of a people who not only eradicated absolute monarchy but also created a new type of state based on the power and authority of the people and established equality among all citizens. Nehru refers to this as social republicanism by which the creation of a state by contract through a constituent assembly provides for the equality of contracting parties and for new social relations between individuals mediated by laws rather than relations of dependence and hierarchy according to the goodwill of the ruler. In the case of India, the challenge was not only to throw off the yoke of imperialism but also to reform and integrate into the republic the independent Indian states ruled by autocratic princes. Nehru argues that the individual subjects of these principalities should be given the choice to determine whether to join the Indian republic or to remain under princely rule. Third, the republic had to promote unity against growing communalism, social and gender inequality. A popularly legitimated constituent assembly, equal citizenship and secularism were meant to address these issues.19 Fourth, Nehru promotes a territorially integral republic, which would incorporate the princely states for reasons of security and complete political and military independence from any external power that might gain a foothold within an internal territorial region. Fifth, from a global perspective, Nehru conceptualises republics as non-aggressive and non-expansive and advocates that contemporary sovereign states ought to pursue cooperative relations and create an international community and institutions to further the ends of peace and security.20

I Nehru’s call for an Indian republic was radical. In 1927 his call for the complete political, economic and military independence of India countered Congress’s desire for Dominion Status in the British Commonwealth and went against the platforms of both his father Motilal Nehru and Gandhi.21 Nehru situates India’s struggle for independence in a tradition of revolution and republican foundings. Not only does he look at historical moments such as the Dutch, American and French revolutions but also he examines the creation of early twentieth-century republics in Spain, Syria and China, for example. The acquisition of Indian independence would constitute a historical moment tantamount to that of key revolutionary moments, notably the American and French. Nehru inscribes the creation of an Indian republic in a continuum of progress towards greater democracy and equality within a modern world. In India, after many years of doubt and hesitation, and dallying with the idea of Dominion Status and the like, the National Congress declared, on 1st January 1930, in favour of independence. Even now there are some 200

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people who seem to be afraid of the idea of independence and talk of Dominion rule in India. But history teaches us, and the examples of Holland and America made it clear enough, that the end of such a struggle can only be independence.22 He emphasises that an independent Indian state would have a significant role to play in the world notably in the pursuit of international peace and cooperation.23 In addition, Nehru is concerned with Indian unity in terms of both incorporating the independent principalities to establish the territorial integrity of the state and creating a national identity. A democratic republic would incorporate individuals on an equal footing and would facilitate the construction of a national Indian identity over and above communal or partial identities. Nehru’s method is historical, normative and pragmatic. He depicts on events and ideas in world history to create an understanding of how the world has progressed.24 He includes the rise and fall of civilisations, technological and scientific progress, as well as the exploitation of individuals and states. He is both greatly optimistic about progress and creating a better world and realistic as he recognises the human tendency to oppress and exploit. He considers that the history of one country is connected to what has happened in other parts of the world, and therefore he draws on ideas and historical events across time and space to construct his understanding of republicanism and of India’s place in the world.25 Nehru develops his understanding of republicanism in his Glimpses of World History, which he composed in prison between 1930 and 1933. This work is written in the form of letters to his daughter and contains, as Nehru puts it, “a rambling account of history for young people”. This account stretches from antiquity to the early twentieth century and covers a unique history of world civilisations and ideas; parts of this work also form, in my reading, the background to his later work, Discovery of India, that seeks to establish a historical narrative for India as an idea and as a unified territorial and cultural entity, or, simply, as a unified state.26 In his letters and speeches, Nehru sketches his normative views both on what an independent state might be and how it ought to fit into the world order of states. His understanding of history and experience both as victim of imperialism and as leader of both the independence movement and the first Indian republic constitutes a pragmatic, yet normative, outlook. Moreover, he understands his ideas to hold not only for the specific case of India, but he considers that the realisation of freedom and equality are part of a greater scheme regarding human justice. Thus he reflects: I talk of Asia and Europe. But they are just geographical expressions and the problems that face us are not Asiatic or European 201

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problems, but world problems or problems of humanity. And unless we solve them for the whole world, there will continue to be trouble. Such a solution can only mean the ending of poverty and misery everywhere. This may take a long time, but we must aim at this, and at nothing less than this. Only then can we have real culture and civilization based on equality, where there is no exploitation of any country or class. Such a society will be a creative and progressive society, adapting itself to changing circumstances, and basing itself on the co-operation of its members. And ultimately it must spread all over the worlds. There will be no danger of such a civilization collapsing or decaying as the old civilizations did. So while we struggle for the freedom of India, we must remember that the great aim is human freedom, which includes of our people as well as of other peoples.27 By couching his view in universal terms that stand for all peoples over all times, Nehru gives credence to the Indian fight for independence as something greater linked to the universal ends of freedom and the good of all humanity. These higher moral ends are above British imperialist rulers, beyond the League of Nations and are part of a progression to a better world. Thus Nehru’s republican and socialist vision for India is normative. Nehru was very keen on socialist ideals of political and socio-economic equality and attended international conferences for the oppressed in the 1920s.28 Nehru’s desire for an Indian republic is pragmatic. First, he opposes the idea of dominion status whereby India would not be granted equal status with other dominion states and it would continue to pay allegiance to the British crown. Second, he does not want Indian independence and autonomy to be hindered by links through which Britain could continue to exert control over India. His examination of the Middle East demonstrates that although many countries were independent, strong connections between the new governments and European powers meant that independence was partial. He observes that Trans-Jordan and Iraq gained independence in the mid-1920s, but centralised monarchical constitutions gave Britain the scope to influence these new states militarily and politically, which crippled their ability to act autonomously. Without complete military, economic and political independence, Nehru asserts, India would not be able to determine its own affairs.29

II What exactly does Nehru’s republicanism amount to? He does not advocate ancient republicanism associated with small city-republics such as the 202

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Greek polis in which all citizens participate in ruling and being ruled or the Indian village panchayat which was ruled by a small council of locals and continued to be a form of governance in his day. Although he locates the roots of democracy in these ancient republics, he argues that the village panchayat was an outdated form of rule because these were “cut off from the world” and did not “fit in with modern conditions”.30 He recognises Gandhi’s yearning for “the days of the old autonomous and more-or-less self-contained village community” where there was little disparity between rich and poor and a “kind of simple democracy prevailed”; yet Nehru does not promote this sort of democratic ideal.31 Nehru envisages a large modern state in which individual citizens rule indirectly through representation. As such, he situates his understanding of the development of political and social freedom in European Enlightenment ideas. In his 1929 Presidential Address to the National Congress in Lahore, Nehru confesses that he is a “socialist and a republican and . . . no believer in kings and princes or in the order which produces the modern kings of industry who have greater power over the lives and fortunes of men than even the kings of old, and whose methods are as predatory as those of the old feudal aristocracy”.32 This statement draws attention to both his sentiments against monarchical and hierarchical domination. Nehru does not merely advocate republicanism as freedom from imperial or monarchic domination. He further associates republicanism with freedom from exploitation and personal dependence. Yet, in this speech, such freedom is coupled with social equality and derives from his socialist convictions. Nevertheless, republicanism is associated with the freedom of the state to be self-governing and with the freedom of the individual from the exploitation of another.33 The first regards the constitution and legitimation of the state; the second is about individual equality and human rights. Montesquieu’s doctrine of the separation and balance of powers and Rousseau’s conception of individual freedom and equality underpin this understanding of republicanism. Nehru draws his vision for an independent India both from these thinkers and the American and French revolutions that put their ideas into practice. In the Discovery of India, he remarks that with regard to “individual and political rights and civil liberties” India was “influenced by the ideas of the French and American revolutions, as also by the constitutional history of the British Parliament. Socialistic ideas, and the influence of the Soviet revolution, came in later to give a powerful turn to our thoughts”.34 He prefaces this observation with the claim that India “did not have to go abroad for ideas of religious and cultural toleration [for] these were inherent in Indian life”.35 He readily adapts and integrates ideas from abroad and from India; in so doing, he is consistent since he conceptualises the struggle for freedom and equality in universalistic terms. 203

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Nehru’s analysis of the American Revolution is significant for it situates the Indian demand for independence from British imperialism within the historical trajectory of foundings of republics and struggles against imperial domination. The American founding was exactly that – the shedding of British imperialism and the creation of a very large republic. So the thirteen American colonies became an independent republic – the United States of America they were called. . . . Only gradually came the feeling of a common nationality. It was a vast country, continually spreading westwards. It was the first great republic of the modern world – tiny Switzerland being the other only real republic at the time. Holland, although republican, was controlled by the aristocracy. England was not only a monarchy, but its parliament was in the hands of the small rich land-owning class. So the United States Republic was a new kind of country. It had no past, as the countries of Europe and Asia had.36 Nehru associates the two revolutions with two of India’s challenges. As a political revolution, the American Revolution symbolises casting off imperial domination and the creation of a republican constitution based on the principle of the separation and balance of powers. As a social revolution, the French Revolution represents the demise of monarchy and hierarchy and the establishment of political equality. Yet the dismantling of arbitrary monarchy also necessitated the creation of a well-balanced constitution that would guarantee individual freedom and equality within the state. India dealt with both issues – the imperialism of an external power and the absolute and arbitrary power of princely rule within the Indian states – and promoted a self-governing republic in which the separation and balance of powers guaranteed non-arbitrary and non-absolute rule, and individual freedom. Nehru saw India’s “peaceful rebellion” against British domination as part of a more general movement towards democracy.37 He deploys democratic and republican theory to counter imperialism, underpin social reform and advance individual freedom and rights. Both American and French revolutions culminated in the creation of independent republics, and India was on this path. These republics guarantee individual freedom against the threat of absolute and arbitrary power through the constitutional division power and ensure the independence of the state both through the institution of a centralised executive power and the recognition of the republic’s sovereignty by other states in the international order. To Nehru, a political revolution results in the formation of an independent state or republic. Montesquieu’s theory of the separation and balance of powers influenced the constitution makers of both the American and 204

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French republics. Montesquieu claimed that individuals are free from arbitrary and absolute power only when power is divided into its executive and legislative functions and when there is an independent judiciary.38 His theory of constitutional government that guarantees individual freedom and establishes the conditions for an independent state has had enormous influence in modern conceptions of the state. In this theory republicanism is about individual freedom and collective independence; however, it does not mean that individuals are equal. Montesquieu recommended that the upper and lower classes participate in legislative power on a hierarchical basis in a bicameral legislature. In the upper chamber, the landed nobility could exercise their political authority to initiate and propose legislation; and, in the lower chamber, representatives of the people could enjoy the political liberty to accept or reject the nobility’s propositions. He further advocated a strong, centralised executive power that could maintain internal security by mediating social conflict as well as preserve the independence of the state by defending it and by promoting a policy of expansion. Montesquieu’s theory of divided sovereignty that promotes separate executive, legislative and judicial powers to guarantee both internal and external freedom undergirds the democratic constitutions of most free states today. In his constitutional recommendations for India, Nehru advocates the separation and balance of powers. As with American and French founders, Nehru too reiterates the influence of Montesquieu’s doctrine in democratic constitution making. In 1937, Nehru produced an article broadly outlining his early recommendations for a book on Federal Structure. He recommends that the head of state (Rashtrapati) hold executive power and that this head act only on the advice of a council of ministers. He proposes a bicameral legislature in which the lower house “be elected directly by the people of India on simple uniform franchise” and the upper house be elected by the “federating units” and by “special interests”. He is not clear on the exact functions of the lower house but notes that its legislative proposals would be subject to revision by the upper house. This upper house would further act as “the guardian of the rights and interests of the federating units as well as of the minority and cultural groups, and of the fundamental rights laid down in the constitution”.39 In addition, he wants to establish national economic councils at both federal and provincial levels to oversee the economic development of the country and provincial legislative assemblies based on functional representation (though he does not clarify what he means by functional, rather than territorial, representation). Finally, he adheres to the principle that the judiciary enjoy absolute independence and promotes a supreme court. This judicial authority should have the power to “maintain the fundamental rights and civil liberties guaranteed by the constitution”.40 205

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Nehru considers it crucial that India be armed and establish its own military and police for both external and internal security. For independent states ought to be able to defend themselves against “external invasion and interference” and ought to have the coercive force necessary “to quell internal commotion . . . without any outside help”. Both Nehru and Gandhi envisioned a self-governing and coercive Indian state with its own army at its own disposal, rather than at the ready for the defence of the imperial power’s (British) interests, notably in conflicts abroad. Nehru ties the creation of arms to the economy and industrialisation. He observes that as warfare is increasingly becoming mechanised it is necessary to develop “industries to supply the munitions and accessories of warfare”.41 Nonindustrial nations are in no position to defend against external aggression. Nehru’s realpolitik promotes industrialisation not only for economic development but also for defence and independence.42 Congress dropped plans for a federal India or a federation in protest against British federative proposals in the Government of India Act (1935) that sought to maintain autonomous rule in the princely states. The idea of an Indian Union was later adopted and the principle of the division of power along with the need for checks continued to underpin Indian constitutional conceptions and Nehru’s republican convictions.43 For instance, Nehru criticises the usurpation of power and move to autocracy in India during the Second World War when “legislatures and the various popular checks on the executive and permanent services vanished”.44 In a critique of the absolute power of the British Raj, Nehru remarks that the Indian legislature in Delhi is comprised of “partially elected” members who must fulfil a “high property franchise” and whose power does not amount much more than to “a debating body whose decisions do not bind the executive and are . . . systematically disregarded”.45 Without sufficient checks on power, the tendency is for it to become arbitrary, tyrannical and to erode freedom; thus the republican idea that there are both institutional and popular checks on power through the division of sovereignty and the people’s ability to inform public policy runs through Nehru’s analysis of the abuse of power in imperialist and autocratic regimes.46 He cites Montesquieu to this effect to show that as much injustice is committed in the name of even law and order, it is necessary to have institutional checks on power to keep it from becoming abusive and absolute. Indeed, Montesquieu’s key insight is that power must stop power by the arrangement of things.47 In the creative process of envisaging a completely independent and selfgoverning India, there was a much debate about what such state might be. Even though Nehru was at helm of the Indian administration when it drew up its constitution, he was not alone in conceptualising it. Bhimrao Ambedkar, a key constitutional architect, feared that without safeguards for 206

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individual and minority rights one oppressive regime would simply replace another; that is to say that the British administration in India would simply be replaced by a coercive state in which Hindus commanded a wide majority; hence he recommended reserved seats within the legislative assembly to mitigate the majority’s clout.48 This debate on majority and minority rights and representation continues today.49 Nehru’s voice was prominent; he disseminated his ideas in a variety of speeches, articles and books and presented a comprehensive understanding of political, economic and foreign policy as India gained independence and democratically established a Constituent Assembly to draft its constitution. He was very much aware of the need to acquire and maintain the support of the masses to legitimate the movement, to give it vitality and to make the non-violent revolution effective. The Indian sovereign independent state would be constructed on popular sovereignty and conceptualised within a world order in which states were the main actors. In order to gain acceptance as an independent body politic, India was constrained to adopt the Western standard and logic of the state in overcoming Western imperialism. In the early 1930s, India rejected the offer of Dominion Status on the basis that it would not be equal to Canada, Australia and South Africa within the British Commonwealth. Nehru does not couch statehood in terms of “Westernisation” but rather constructs an Indian national identity and focuses on Indianisation. He further conveys a great sense of optimism and sees the creation of an autonomous Indian state that achieves freedom as a means to an end, which is to raise people to a higher level of humanity.50 India has a long history and has come under the power of various kings and empires, yet, Nehru argues, it has the possibility of reconstructing itself as a large republic. In his writings, Nehru surveys India’s past and shows how India can once again develop into a powerful state and take its place within a world in which commerce, communication and modern progress have brought states closer and made them interdependent. In contrast to Gandhi, Nehru is not inimical to progress and modernisation; rather, he accepts reason and science.51 Nehru provides a history of India that takes colonialism into account and situates India within a broader movement of anti-colonial republican foundings that promise national unity, equal citizenship and participation in political authority.

III A hindrance to Indian unity was the existence of the Indian states run by semi-autonomous princes. Nehru’s deployment of republicanism challenges the status of these principalities that relied on British military and economic support and backing. Part of his vision is that as a republic, India 207

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would enjoy complete economic and military independence, whereas proposals for Dominion Status did not guarantee total independence since Britain would maintain some military and economic privileges. Were these principalities to remain independent, the Indian republic would lose its territorial integrity and be a contradiction in terms. Moreover, Britain would continue to play a military and economic role in these states and pose a threat to India. Nehru observes: “Congress knew well that the backwardness of the Sates hindered our national progress and that there could be no freedom for India unless the states ceased to be what they were”.52 Therefore, it was crucial to co-opt these states into the Indian Union. At the same time, Nehru was aware that such change had to come from below, for the “final and paramount power . . . is the will of the people”.53 Dismantling autocratic princely rule in favour of popular sovereignty furthered the cause of freedom and republicanism. Nehru considered these princely states backwards since they were subject to the autocratic rule of princes who were allied and subject to the British Raj. This subjection to autocracy eroded the people’s autonomy; moreover, their economic and industrial development fell behind the rest of India since resources fed the interests and tastes of the rulers. There was a great deal of inequality between the extremely rich rulers and the poverty-stricken peasant populations. Nehru drew on the example of the French Revolution that abolished autocratic rule to support his arguments for reform. The French Revolution was social because it “put an end to monarchy, . . . to innumerable privileges, [hierarchy] and brought new classes to the front”.54 With the overthrow of monarchy in Europe, democracy grew and free rule led to the development of industry and greater equality.55 “Modern industry has spread and democratic institutions have grown up with an ever-widening franchise”. As we have already observed, Nehru promotes the industrialisation and modernisation of India to obtain an equal standing with other great states in the world and to improve the socio-economic lives of Indians. “The reform of the land system is tied up with the development of industry, both large-scale and cottage, in order to give work to our scores of millions of unemployed and raise the pitiful standards of our people. That again is connected with so many other things – education, housing, roads and transport, sanitation, medical relief, social services, etc.”.56 The hierarchical and autocratic rule of the princely states thwarted the uniform advance of development across India. Nehru’s argument that universal suffrage ought to be used to incorporate the people of the princely states into the Indian republic further advances the breakdown of hierarchical political and economic structures. Again, his social republicanism reflects Rousseau’s idea that ultimately legitimate political authority derives from the people, who, as equal citizens, constitute the 208

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state.57 Accordingly, individuals would gain not only the political autonomy to select representatives but also the social and economic independence to establish their own livelihood. In addition, this individual independence would support the republican state rather than individual dependence on the goodwill of the prince.58 Nehru asserts that the people of these independent states should have their say on how they want to be governed – which is to say either as part of a free and united India or under the autocracy of the prince. The choice of the form of governance ought to be up to the people, not the British, not the princes.59 Again he uses the republican paradigm to challenge absolute rule and to assert the determination of the people. Nehru believes that legitimate authority resides in the body of the people who ultimately ought to decide how they are ruled. By the same token, his republicanism is not a straightforward repudiation of monarchy. Rather, what he contests is the legitimacy of such rule. To Nehru, political rule is legitimate only if it is founded on the sovereignty of the people. That is to say that the final and absolute authority resides in the people and it is up to the people as a unified body to decide how it wants to be ruled. He considers monarchy an illegitimate form of rule if the power of the king rests on any other power than that of the people. He contests the principle of divine right whereby one’s power and claim to legitimate rule derive from a divine source. More to the point, he opposes a situation where the ruler maintains his rule and power solely by the backing of an external, and often imperialist, power.60 In sum, Nehru sees these semi-autonomous princes as constructs of British imperialism and that without such backing their rule would eventually collapse.

IV Nehru’s demand for a Constituent Assembly establishes legitimate authority on the will of the people and as such popular sovereignty not only reflects his adoption of historical constitutional foundings, but it also accepts the principle of the social contract.61 Theorists of the mixed constitution and divided sovereignty do not usually advocate a contract since this implies an undivided sovereignty, yet most contemporary and modern democratic republics divide power, for sovereignty resides in the people. In The Social Contract, Rousseau brings these two ideas together. He advocates a popular legislative power in which all citizens participate in making the laws and a separate, distinct executive power to implement the will of the people. He reduces the idea of an absolute sovereign power to legislative power and distinguishes executive power as the government, which is subordinate to the sovereign. In effect, Rousseau endorses a division of legislative from executive power. 209

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Nehru observes that Rousseau’s ideas “played an important part in preparing the people of France for the great revolution”.62 Although Rousseau promotes a small republic so all male citizens could participate in making the contract and in governing, Nehru’s call for the popular approval of the Constituent Assembly ameliorates this ideal. To Nehru, the only way to create a new state is to found it on the right of the people (including men and women of all castes and religions) to establish its own constitution.63 The Constituent Assembly would be democratically elected by adult franchise and established “to frame a constitution for a free India”.64 Nehru was swayed by the idealism of the French Revolution in his call for such an assembly. In a 1932 letter on the fall of the Bastille, he discusses the Oath of the Tennis Court whereby the French Third Estate (the commons) “took an oath not to disperse until they had established a constitution”.65 The determination of the French revolutionaries to establish their own rule reflects that of the Indian Constitution makers. Nehru cites this oath in his speech on the aims and objectives of the Indian Constitution in December 1946. He conveys the historical significance of the moment. He stands at the threshold of “5000 years of India’s history” as India enters into a new era and it creates its own constitution for freedom. He refers to “the various Constituent Assemblies that have gone before and of what took place at the making of the great American nation when the fathers of that nation met and fashioned out a constitution which has stood the tests of so many years”.66 The Indian demand for a self-governing state based on the wishes of the Indian people “expressed through its freely chosen representatives” goes back to 1922 when Gandhi elaborated on the meaning of swaraj or selfgovernment. But it was not until 1934 when the Swaraj Party asserted that the right of self-determination can be actualised only through a constituent assembly representative of all sections of the Indian people.67 Thus the goal of establishing a constituent assembly crystallised, was adopted subsequently by the All-India Congress Committee and reiterated at the Faizpur Congress meeting in 1936.68 More than a decade after independence Nehru describes these ends: Our resources were limited, and we wanted to utilize them to the best advantage to attain declared objectives. After independence, a Constituent Assembly was formed to draw up the new Constitution of India; this declared that India was to be a sovereign, democratic Republic which should secure for all its citizens: justice – social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of

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opportunity. And among them all it was to promote fraternity, assuring the dignity of the individual and the unity of the nation.69 The act of constituting an assembly to frame a constitution that embodies the will of the people creates or constitutes a unity, which is the state. The creation of a republic requires both institutional checks and balances and the popular sovereignty established through an agreement made by an assembly that embodies the will of the people and establishes this will in a rational entity, in other words in a constitution. This presumes that there is a popular will to create an independent state according to its own wishes and to principles of freedom and equality; freedom since all adults express their volition in electing representatives to do the work of drawing up a constitution on their behalf and equality since all adults have a voice. It was clear that the principle of rights would be part of such a republican constitution that would protect minority rights. Nehru highlights this protection and reiterates that the National Congress wanted “a Constituent Assembly, elected by the people, to frame its Constitution of a free India, with full safeguards for the protection of all minority rights”.70

V Nehru advocates universal suffrage across gender and caste. He promotes the popular legitimation of an assembly to create a new framework that would regulate political and civil relations among citizens. His understanding of the Constituent Assembly underpins popular sovereignty. Ultimately, the constitution and the legislative assemblies that make coercive laws arise from the people. The social contract for Rousseau sought to establish equality among all individuals party to the contract and to maintain that relationship of equality each time the sovereign assembly gathered to make laws. The essence of the pact for Rousseau, as for Hobbes, was that it was a mutual agreement between all men. This agreement regulated the relations between men. Each time the franchise is exercised (at elections) the contractual relationship between each person with all others is reiterated. To this extent, the franchise is about indirectly making the rules according to which individuals live together in society. These values reflect fundamental republican values whereby all citizens share equally in ruling and set the terms according to which they will live together. Nehru sought the legitimation of India’s diverse communities across gender and caste for the construction of an Indian constitution and his desire to posit the protection of minority rights within a system of universal political suffrage as one person, one vote reflects the anxieties of the time. Many worried

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that a Hindu majority would dominate any assembly charged with making a constitution. There were two further impediments to unity and the acquisition of independence. The first was communalism and the second, untouchability.71 Both religious minorities and Dalits worried that the Hindu majority of the Indian population would drown their voices and maintain oppressive structures of caste. Therefore there was a demand for separate electorates and the reservation of seats in elected assemblies. Nehru was hesitant with regard to both propositions and thought that individual rights would mitigate inequalities. He promoted social equality and eradication of the caste system and had a secularist view of politics. To Nehru, “in political and economic matters people do not function as religious groups”.72 To a certain extent he is right and his thinking presages much twentieth-century Anglo-American liberal thought on secularism and the impartiality of the state. However, what he neglects is that many people do act from epistemic outlooks based on religion in their political and economic affairs. Moreover, as historians now concede, his disregard for communal demands cost India its unity.73 As the struggle for freedom took place during the Second World War, Nehru compares communalist technique with Nazi methods. In his view, the promotion of separate electorates and the creation of a state based on religious identity were akin to the exclusivist policy of the Nazis. He derides communalism as anti-nationalist, anti-democratic, abusive, violent and offensive.74 It is important to note that for Nehru nationalism is tied to a pluralistic concept of the state in which individuals of all backgrounds (socio-economic, linguistic and religious) associate and their nationalism emphasises the whole unity rather than its sectarian groups. Nehru sees the promotion of separate religious electorates and rise of communalism or sectarianism to be the result of Western interference and argues that elites use such policies instrumentally to protect their vested interests.75 To illustrate, Nehru draws on the Syrian experience. In the late 1920s as Syria fought for independence and demanded a constituent assembly, the French stirred up trouble between the Christians and Druzes, and arranged for separate religious electorates. Yet as the nationalists controlled the Assembly, the Syrians were able to overcome sectarian perspectives and see themselves as part of a greater Syrian national state and together Syrians drafted a constitution for a sovereign republic.76 Nehru did not advocate separate electorates or exclusivist communal groups and advocated a higher inclusivist Indian national identity. Yet again he disregarded the extent to which this identity reflected the Hindu majority population to the detriment of minority groups. To Nehru, Indian identity was not based on the identity of any single majority or minority group. He saw that populations could be easily manipulated according to a few 212

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people who implant discontent, leading to the mobilisation of mobs and descent into violence. Although Nehru had faith in the popular will as the basis for political authority, he was quite aware that this will can be manipulated. Yet he did not proactively advocate reserved seats for Dalits or communal minorities to appease radical tendencies. Rather, Nehru promoted an equal citizenship according to which individuals shared in and were loyal to an Indian whole.77 This perspective went beyond the individual and the state for he endorsed a world federation comprised of free nations rather than “separate warring national states”.78 Nehru considered the caste system as India’s greatest weakness. As a socialist who believed in egalitarianism, he advocated its eradication.79 He granted some reserved seats for Dalits in ruling institutions and in 1931 with Gandhi drew up a “Resolution on Fundamental Rights” that was adopted by the Indian National Congress. The resolution defended the equal political and economic freedoms of the masses. These freedoms include freedom of association, speech, conscience and the equal rights and obligations of all citizens, as well as state neutrality with regard to religion, a living wage for industrial workers, protection of women workers, adult suffrage and free primary education.80 These rights were to be made good through judicial process and the institution of a supreme court. The resolution was forward-looking and liberal in that it reiterated the key liberties that John Stuart Mill defended. Yet it went beyond Mill and sought to protect the equality of all citizens. The resolution extended citizenship to all adults, including women and Dalits. Nehru went beyond European Enlightenment thinking and practice; he defended both social and gender equality and the protection of minority rights such as religion, culture and language rights. Moreover he claimed that “any infringement of such a right could be challenged in a supreme court”.81 It is worth noting that social and gender equality were not foreign to Indian ideas and practices. In antiquity, Buddha promoted social justice and opposed caste and in the fifteenth to sixteenth centuries, founders of the Sikh religion preached social and gender equality. Nevertheless, arguments for universal female and male suffrage and the protection of human rights were radical in the late 1920s and early 1930s.82 The radical extension of suffrage to all adults regardless of gender or caste did pose a threat to the Indian liberals and upper-class elements of Indian society; but Nehru professed socialism and considered that not only was this the right way forward, it was also just.83 Nehru was concerned with developing a political consciousness among the masses, not only to create unity and a national identity, but also to mobilise the masses. Unity and the recognition that one is an equal member of the state are both necessary to overthrow oppressive rule and to construct a republic. From a more pragmatic perspective, to be effective non-violence 213

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and non-cooperation had to be mass-based. Nehru considers that charismatic leaders such as Tilak, an early Indian nationalist, and Gandhi were able to mobilise the masses and to cultivate a nationalist identity among them.84 The main contribution of Gandhi to India and the Indian masses has been through the powerful movements which he launched through the National Congress. Through nationwide action he sought to mould the millions, and largely succeeded in doing so, and changing them from a demoralised, timid and hopeless mass, bullied and crushed by every dominant interest, and incapable of resistance, into a people with self-respect and self-reliance, resisting tyranny, and capable of united action and sacrifice for a larger cause. He made them think of political and economic issues, and every village and every bazaar hummed with argument and debate on the new ideas and hopes that filled the people. That was an amazing psychological change. The time was ripe for it, of course, and circumstances and world conditions worked for this change. But a great leader is necessary to take advantage of circumstances and conditions.85 Nehru believed that the creation of an overarching Indian nationalist republican identity with the guarantee of individual equality could unite partial identities. Yet something greater occurred through Gandhi’s leadership. The people acquired new hope and were transformed into autonomous and self-respecting individuals united in the unique cause to found a sovereign republic based on their popular authority and will. In addition, the people had to be active in the public sphere and willing to sacrifice themselves in non-violently resisting foreign domination. The performance of resistance and disobedience to unjust laws in the name of a higher public good and freedom undermined British rule. The Indian political conscience was transformed through self-sacrifice, the pursuit of truth and self-rule (satyagraha and swaraj). These values can also be read as iterations of republican virtue. This self-determining participation and attempt to realise some sort of conception of the good within the Indian context reiterate ideals of res publica (the public thing) and a reclaiming of political power and authority by the people from the hands of an illegitimate, foreign and dominatory power. Nehru’s normative outlook was idealistic, and communalism, untouchability and poverty were and continue to be major problems. Nevertheless, unity and equality were aims of the Indian revolutionaries and the achievement of independence reflects the development of a mass political consciousness achievement and unity.

VI A final aspect of Nehru’s republicanism has to do with his conception of the republic in the world order. This is significant since the declaration of 214

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India’s independence marked the end of the world order based on European colonial dominance. Nehru considers that as a republic, India would be recognised as an equal sovereign state by other states and that India would act as an equal in the pursuit of international peace and cooperation. He contrasts the peaceful seeking republic to the expanding and imperialistic state, which seeks domination as the key to security against other aggrandising powers. One of the problems of European democratic republics is that many of these states were expansionist and held global empires, which were necessarily despotic as they imposed arbitrary and absolute rule over their colonies. To Nehru, these states that advocated peace, security, freedom and equality at home while dominating and imposing despotic rule abroad were inherently contradictory and hence such republics could (and did) easily collapse into dictatorship.86 The imperialism and domination advocated by democratic rulers abroad was easily translated into fascism at home. By contrast, an Indian republic that pursues peace and cooperation abroad would be a better democracy since it would not be tainted by fascist tendencies and imperialist pasts. India would be better placed to create a world of non-domination and to act as an example to states who also aspire to be independent within a postcolonial global order of sovereign states. Moreover, if new states are created by and sanctioned by the will of the people and governments are responsible to the people, then it stands to reason that such republics as free states would seek peace, freedom and cooperation with other states above all, so Nehru’s thinking goes.87 Nehru develops a powerful argument for India’s independence from the British Empire as well as from the Commonwealth, which was exclusive and would not necessarily reflect the universal pursuit of international cooperation. In the 1920s, Congress developed a foreign policy and Nehru helped shape the object of that policy which was the desire to cooperate and develop friendly relations with all states. Nehru describes how India began to see itself as a free state as it acquired confidence with the growth of the nationalist movement. He stresses that the size and “potential strength and resources of India made Indians think in big terms”. A free India would make a “vital difference to Asia and . . . to the world”. This contributed to Nehru’s claim that “Dominion status, even when that status approached independence, seemed an absurd limitation and a hindrance to full growth”.88 However, as Congress’s foreign policy developed, India did not conceptualise its independence as isolation. According to Nehru, Congress realised that “the old type of complete national independence was doomed and that there must be a new era of world co-operation”. Hence, the shapers of India’s independence clarified that they were willing “to limit that independence, in common with other nations, within some 215

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international framework”.89 Nehru indicates that such a framework should as far as possible “cover the world” and that the British Commonwealth falls short of this. In Glimpses of World History, he mentions a world-state, not as a great empire, but rather a universal sovereign or a sort of “world republic which would prevent the exploitation of one nation or people or class by another”.90 These ideas on equal republics joined in the pursuit of peace echo Kant’s understanding of perpetual peace. To the difference of Kant, Nehru conceives not only of European republics as equal but all states within the world.91 Nehru’s ideas on international relations and India’s foreign policy contribute to his republican conception and had a profound impact on the conceptualisation of the United Nations.92 In his “Acceptance of the Objectives Resolution” speech, he asks the Indian Constituent Assembly to take into account that in today’s world there is no isolation – you cannot live apart from others. You must co-operate or you must fight. There is no middle way. We wish for peace. We do not want to fight any nation if we can help it. The only possible real objective that we, in common with other nations, can have is the objective of co-operating in building up some kind of world structure, call it One World, call it what you like. The beginnings of this world structure have been laid in the United Nations Organization. It is still feeble; it has many defects; nevertheless, it is the beginning of [a] world structure. And India has pledged herself to co-operate in its work.93 There is great optimism in this declaration. At the end of the Second World War and at the beginning of a postcolonial world order, India had much to offer the world by way of its experience as a subjugated colony that fought long and hard for independence as a sovereign democratic republic equal to other sovereign states. To conclude, Nehru draws on a variety of historical and philosophical sources from all parts of the world. In this chapter I have emphasised the European origins of his republicanism, which he reshaped within the Indian context, mixing notions of revolution and resistance with the boycott of British goods and non-cooperation (swadeshi), non-violence (satyagraha) and self-rule (swaraj). Nehru’s ideas are drawn from a comparative body of thought and transformed by his experience and forward-looking thinking. Nehru’s restatement of the republican tradition included independence from imperial and monarchic domination and the creation of a free state through the will of the people as expressed in the Constituent Assembly and the establishment of political institutions that divide power and provide

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constitutional checks on the abuse of power to guarantee individual freedom. The act of constituting the republic through a democratically elected and representative Constituent Assembly aimed at securing the equality of Indian citizens. Moreover, the actual construction of the constitution underwent much consultation, thought, deliberation and many amendments that were sanctioned by the assembly.94 The desire to dismantle social hierarchy and create greater political and economic equality through the protection of individual and minority rights with recourse to the supreme court and the institution of gender and social equality in the franchise were radical and progressive aspects of the republicanism articulated by Nehru and the founders of the Indian state. At the same time, India was constrained to adopt an Enlightenment ideal of the state were imperial powers to recognise it as legitimate and as living up to the standard of civilisation. According to Rabindranath Tagore Europe brought four key ideas to India: science and reason; independence or the idea that no person could be the property of another; self-determination and the sovereignty of the individual and nation.95 Nehru’s republicanism aligns with these; he advocated progress associated with science and reason, independence as nondependence on another person or power or simply put non-domination (both economic and political); self-government and, finally, sovereignty as India was recognised as an equal sovereign republic within the world order. Nehru’s re-conceptualisation of how a popularly sanctioned republic ought to act in the international realm vis-à-vis other states is a cornerstone of international co-operation and organisation. His vision that republics ought to view other states with equal respect and join together in the common pursuit of peace continues to influence today’s postcolonial world order. The founding of an independent, sovereign and democratic Indian republic signified a new moment in our collective histories. It set the tone for the creation of many new republics in a postcolonial world order in which republican virtue, self-determination and freedom from the imperial domination were furthered in both theory and practice.

Notes 1 J. Nehru, “Aims and Objects Resolution”, Constituent Assembly of India Debates (Proceedings), vol. I, 13 December 1946, available at http://par liamentofindia.nic.in/ls/debates/vol1p5.htm (last accessed 28 July 2016); hereafter cited as CAD. 2 B. S. Rao, The Framing of India’s Constitution: Select Documents, vol. 8 (New Delhi: Indian Institute of Public Administration, 1967), p. 750. 3 Nehru, “Aims and Objects Resolution”, CAD, 13 December 1946; and see too his CAD speech of 22 January 1947 where he reiterates this.

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4 J. Nehru, “Resolution on Independence, 1927”. In Dorothy Norman (ed.), Nehru: The First Sixty Years, vol. I (London: Bodley Head, 1965), pp. 145–146. 5 P. Chatterjee, “The Moment of Arrival: Nehru and the Passive Revolution”. In Nationalist Thought and the Colonial World: A Derivative Discourse? in The Partha Chatterjee Omnibus (New Delhi: OUP, 1999), pp. 131–166. 6 J. Nehru, “The Constituent Assembly, 8 March 1940”. In J. Nehru (ed.), The Unity of India: Collected Writings 1937–1940 (New York: The John Day Company Inc., 1942), pp. 370–372, 370–371. 7 Nehru, “The Constituent Assembly, 8 March 1940”, p. 370. 8 Nehru, “Aims and Objects Resolution”, CAD, 22 January 1947. 9 Nehru, CAD, 22 January 1947. 10 Nehru, CAD, 13 December 1946 and 22 January 1947. 11 Nehru, CAD, 22 January 1947. 12 J. G. A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition, 2nd ed. (Princeton, NJ: Princeton University Press, 2003); Q. Skinner, Liberty Before Liberalism (Cambridge: Cambridge University Press, 1998); P. Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997); B. Bailyn, The Ideological Origins of the American Revolution (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1967); G. S. Wood, The Creation of the American Republic 1776–1787, 2nd ed. (London: The University of North Carolina Press, 1998). 13 J. Nehru, An Autobiography (London: Penguin, 2004), pp. 1–50; Nehru, “Presidential Address at the First Session of the Republican Congress”. In S. Gopal (ed.), Selected Works of Jawaharlal Nehru, First Series, vol. 3 (New Delhi: Orient Longman, 28 December 1972), pp. 7–8; hereafter, SWJN (1); Norman, Nehru, pp. 139–146. 14 Nehru, Glimpses of World History (London: Penguin, 2004), pp. 392–393. 15 J. Brown, Nehru: A Political Life (New Haven: Yale University Press, 2003); S. Khilnani, The Idea of India (London: Hamish Hamilton, 1998); R. C. Pillai, “The Political Thought of Jawaharlal Nehru”. In K. L. Deutsch, Thomas Pantham, and Kenneth L. Deutsch (eds.), Political Thought in Modern India (London: Sage Publications, 1986), pp. 260–274; B. Zachariah, Nehru (London: Routledge, 2004). 16 G. Austin, The Indian Constitution: Cornerstone of a Nation (Oxford: Clarendon Press, 1966); S. Sen, The Constitution of India: Popular Sovereignty and Democratic Transformations (Oxford: Oxford University Press, 2010). 17 I use Cambridge School of historians to refer mainly to J. G. A. Pocock and Q. Skinner who advance the predominant view of republicanism. 18 Khilnani, The Idea of India and R. Guha, India After Gandhi: The History of the World’s Largest Democracy (London: MacMillan, 2007). 19 Niraja Gopal Jayal, Citizenship and Its Discontents: An Indian History (Cambridge, MA: Harvard University Press, 2013). 20 See the discussion on the “Objectives Resolution”, 13 December 1946–22 January 1947. 21 Norman, Nehru, pp. 168–173; Brown, Nehru, pp. 86–87. 22 Nehru, Glimpses, p. 416. 23 M. Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton, NJ: Princeton University Press,

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2009), pp. 149–189; M. Bhagavan, “A New Hope: India, the United Nations and the Making of the Universal Declaration of Human Rights”, Modern Asian Studies, 44:2, 311–347. 24 Nehru, Glimpses, p. 7, 1107–1108. 25 Nehru, Glimpses, p. 5. 26 Nehru, The Discovery of India (London: Meridian Books, 1951); Khilnani, The Idea of India. 27 Nehru, Glimpses, p. 211. 28 Nehru, Autobiography, pp. 170–174. 29 Nehru, Glimpses, pp. 889–905. 30 Nehru, Glimpses, pp. 490–491; B. R. Ambedkar, “Speech Moving the Draft Constitution in the Constituent Assembly”. In B. S. Rao (ed.), The Framing of India’s Constitution, vol. 8 (New Delhi: Indian Institute of Public Administration, 1967) also opposed these and referred to them as republican fantasies created by Metcalfe, pp. 429–430; CAD, vol. VII, 4 November 1948, Part II. 31 DI, pp. 381–382. 32 Nehru, India and the World: Essays by Jawaharlal Nehru (London: George Allen & Unwin, 1936), p. 27; Norman, Nehru, pp. 203–204; Nehru, Autobiography, p. 177. 33 I refer to Skinner’s and Pettit’s views on republican freedom as the freedom of non-domination. 34 Nehru, Glimpses, pp. 392–393; cited in DI, p. 360. 35 DI, p. 360. 36 Nehru, Glimpses, p. 417. 37 Nehru, Glimpses, pp. 844–854. 38 Montesquieu, The Spirit of the Laws, F. Neumann (ed.) and T. Nugent (trans.) (London: Collier MacMillan Publishers, 1949), XI, p. 1. 39 Nehru, “On Federal Government”, SWJN (I), 8, 595–610, 602–603. S Gopal (ed.). 1972. New Delhi: Longman Orient. 40 Ibid., pp. 603–606. 41 Ibid., p. 606. 42 DI, pp. 384–385. 43 Nehru, “The Indian States and the Crisis”. In The Unity of India (23 April 1940), pp. 47–49. 44 DI, p. 409, 414. 45 Nehru, “The Parting of the Ways”. In The Unity of India (10 August 1940), pp. 373–389, p. 374, note 1; cited hereafter as Nehru, “The Parting”. 46 Pettit, Republicanism. 47 Nehru, Glimpses, p. 553; Montesquieu, SL, XI, 2–6. 48 B. R. Ambedkar, “A Plea to the Foreigner: Let Not Tyranny Have Freedom to Enslave”. In What Gandhi and Congress Have Done to Untouchables, in V. Moon (ed.), Dr. Babasaheb Ambedkar Writings and Speeches, vol. 2, vol. 9 (Bombay: Education Department, Government of Maharashtra), pp. 199– 238; A. P. Mukherjee, “B. R. Ambedkar, John Dewey, and the Meaning of Democracy”, New Literary History, 40:2 (Spring 2009), 345–370. 49 P. Chatterjee, “The Moment of Arrival”; J. Chiriyankandath, “Creating a Secular State in a Religious Country: The Debate in the Indian Constituent Assembly”, Commonwealth and Comparative Politics, 38:2 (2000), 1–24. 50 Nehru, “The Unity of India”, Foreign Affairs, 16:2 (January 1938), 231– 243, 231.

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51 Nehru, Glimpses, pp. 605–611, 1005–1011. 52 Nehru, “The Indian States”. In The Unity of India (February 1939), pp. 27–46, 29. 53 Ibid., pp. 23–32. 54 Nehru, Glimpses, p. 399. 55 Nehru, “Presidential Address, Faizpur, December 1936”. In Norman (ed.), Nehru: The First Sixty Years, vol. II (London: Bodley Head, 1965), pp. 464–472, 466. 56 Nehru, “Presidential Address, Faizpur, December 1936”, p. 471. 57 Nehru, CAD, 13 December 1946 and 22 January 1947; Rousseau, Social Contract, I, 6. 58 Skinner makes this type of argument in Liberty before Liberalism. 59 Nehru, CAD, 22 January 1947; DI, pp. 431–435. 60 Nehru, “Speech to Constituent Assembly, 22 January 1947”, pp. 297–298. 61 Nehru, CAD, 13 December 1947, 22 January 1947; “The Constituent Assembly”. In The Unity of India. 62 Nehru, Glimpses, p. 192; Jean-Jacques Rousseau, in M. Cranston (ed. and trans.), The Social Contract (London: Penguin Books Ltd., 1968). 63 Nehru, “The Constituent Assembly”. In The Unity of India (8 March 1940), pp. 370–372, 370–371. 64 Nehru, Glimpses, p. 854 cited in letter 162 on “Peaceful Rebellion in India”, which contains a “Note” from October 1938 at pp. 852–854. 65 Nehru, Glimpses, p. 423. 66 Nehru, CAD, 13 December 1946. 67 Speech by Sachchidananda Sinha, Provisional Chairman of the Constituent Assembly, CAD, 9 December 1946. On swaraj see A. Parel, “Editor’s Introduction to the Centenary Edition” in Gandhi, ‘Hind Swaraj’ and Other Writings” ed. A Parel (Cambridge: Cambridge University Press, 2009), pp. xiv–xxiv, xix–xxi. 68 Nehru, “India’s Demand and England’s Answer” (6 January 1940), pp. 357–369, 364. 69 Nehru, “Changing India”, Foreign Affairs, 41:3 (April 1963), 453–465, 454. 70 Nehru, “The Parting”, p. 375. 71 Nehru, “India’s Demand and England’s Answer”. In The Unity of India (6 January 1940), pp. 357–369, 364–365; “A Survey of Congress Politics, 1936–39”. In Ibid. (February–March 1939), pp. 86–135, 120; “Provincial Governments – Wake Up!”. In Ibid. (28 March 1939), pp. 147–151, 148. 72 Nehru, “The Parting”, p. 386. 73 Niraja Gopal Jayal, Citizenship and Its Discontents. 74 Nehru, “The Parting”, p. 387. 75 Ibid., p. 386. 76 Nehru, Glimpses, pp. 883–884 and Nehru, “The Parting”, p. 388. 77 Nehru, “India’s Demand and England’s Answer”, pp. 365–366. 78 Nehru, “The Parting”, p. 389. 79 DI, p. 235, 496. 80 SWJN (I), 4, 511–513. 81 Nehru, “India’s Demand and England’s Answer”, p. 366. 82 B. R. Ambedkar, States and Minorities: What Are Their Rights and How to Secure Them in the Constitution of Free India (Bombay: Thacker & Co. Ltd., 1947).

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83 Nehru, “The Parting”, pp. 383–384; Nehru, “The Constituent Assembly”, p. 372; Nehru, Glimpses, letter 131 on Nehru, “The Advance of Democracy”, pp. 611–618. 84 Nehru, Glimpses, p. 512. 85 Nehru, India and the World, pp. 173–174. 86 Nehru, Glimpses, pp. 944–960. 87 “Acceptance of the Objectives Resolution”, in Norman, Nehru, p. 300; Nehru, “The Parting”, pp. 388–389. 88 DI, p. 397. 89 DI, p. 398. 90 Nehru, Glimpses, p. 111. 91 Immanuel Kant, “Perpetual Peace: A Philosophical Sketch”. In Hans Reiss (ed.) and H. B. Nisbet (trans.), Political Writings (Cambridge: Cambridge University Press, 1991, reprinted 2008), pp. 93–130. 92 Mazower, No Enchanted Palace, pp. 149–189. 93 “Acceptance of the Objectives Resolution”, p. 299. 94 R. Bajpai, Debating Difference: Group Rights and Liberal Rights in India (Oxford: Oxford University Press, 2011). 95 D. Chakrabarty, “From Civilization to Globalization: The West as a Shifting Signifier in Indian Modernity”, Inter-Asia Cultural Studies, 13:1 (2012), 138–152, 145–146.

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INDEX

Acceptance of the Objectives Resolutions 216 Adi Hindu Depressed Classes Association 168 advisory committee 65 Alexander, A. V. 28 Ali, Faiz 105 All India Civil Liberties Union 156 All India Congress Committee 210 All India Trade Union Congress 94, 186 All India Varnashrama Swarajya Sangh 189 Ambedkar, B. R. 38, 183, 188, 206 American Constitution 107 American Revolution 204 Amery, L. S (secretary of state) 15 Amin, Shahid 44 Amrita Bazaar Patrika 88 Annie Besant’s 1917 Congress Resolution 113 Ansari, M. A. 87 Anthony, Frank 151 anti-imperialist protests 84 Argentina 3 Arya Samaj 7 assembly 3 Associated Press of America 22 Austin, Granville 11, 38, 75 Ayyangar, M. A. 153 Ayyangar, N. G. 38 Ayyar, A. K. 38 Ayyar, Alladi Krishnaswami 154, 183, 188

Bajpai, Rochana 3 Baluchistan 29 Banerjee, P. N. 17 Banerji, Purnima 188 Bardhan, Pranab 48 Bharati Press 137 Bhargava, Pandit Thakur Das 115 Bhargava, Rajeev 12 Bhatia, Gautam 5, 103 Bhatia, Udit 1 Birla, Ghanashyam Das 186 Bombay Prohibition Act 151 Bose, Sarat Chandra 98 Bose, Vivian Justice 106, 116 Boycott of British goods 216 British Cabinet mission 19 British Commonwealth 198, 216 British Commonwealth of Nations 198 British Parliament 16 Brown, Nathan 60 bureaucratic managerial elite 49 Burra, Arudra 5, 130 Cabinet Mission 29, 66, 67 Cabinet Mission Plan of 1946 134 Central Assembly 67 Central Legislative assembly 20 Chakrabarty, Dipesh 12 Chandhoke, Neera 5, 83 Chatterjee, Partha 123 Cheema, M. G. 138 Churchill, Winston (prime minister of UK) 15 Cinematograph Act of 1952 105, 122

223

INDEX

Civil Disobedience movement 111, 136 colonial regime 45 Columbia 3 Commonwealth of India Bill 113 Communist Party of India 46, 93 Congress leadership 46 Congress’s Assembly Party 4, 5 Congress Working Committee 19, 28 Constituent Assembly 67 Constituent Assembly Debates 34, 58, 103, 106 constitutionality of obscenity laws 105 Constitution First Amendment Bill 132, 133 constitution-making body 32 constitution-making process 39, 52 Constitution of India: Art. 15(3) 133; Article 19(1)(a), (121, 130); see also Article 19(2) 130; Art. 29(2) 133; Article 30 of the Constitution 7; Article 31, 133 Copland, Ian 165 Cripps, Sir Stafford 28 The Cripps Mission 25 Dalal, Ardeshir 187 Das, Seth Govind 119 Dasgupta, Sandipto 5, 38 Declaration of Fundamental Rights 86, 186 Delhi High Court 124 Deo, Shankar Rao 153 Department of Planning and Development 187 Deshmukh 151 Deshmukh, Govind 27 developmental state 45 Directive Principles into the Fundamental Right to Life 192 Directive Principles of State Policy 84, 182 divide and rule 70 dominant capitalist class 48 Dominion Legislature 65, 67 Dominion of the Commonwealth 197 Dominion Parliament 6, 134, 135 Dominion Status 86 Drafting Committee 65, 74

Durgabai, G. 153 Dworkin 2 Eastern Bengal 29 Elangovan, Arvind 1, 4 Elster, Jon 2, 58 Emperor v. Sadashiv Narayan 136 English Hicklin Test 112 ethnic violence 58 European Democratic Republics 215 Executive Council of the Viceroy 14 extraconstitutional safeguard 18 extra-economic forms of coercion 51 Faizpur Congress Meeting 1936 210 Fall of the Bastille 210 federal court 111, 136 Federalist papers 60 federal structure 205 First Amendment Bill in MayJune 1951 135 First Plan, of 1951 53 Food Security Act of 2012 8 forced labour 54 Frankfurter, Felix Justice 8 French assembly 64 French moralists 59 French Revolution 199 French Third Estate 210 fundamental rights 73 Fundamental Rights Sub-Committee 114, 186 Gandhi, M. K. 14 Gandhian Socialists 89 Gargarella, Roberto, Pg 3 Gitlow, Benjamin 108 Gitlow v. New York 8, 107, 112 Glimpses of World History 199, 216 Government of India Act 1935 15, 19, 52, 73, 134, 186, 206 Greek polis 203 Gwyer, Maurice Justice 105 Hailey, Dir Malcolm 87 Hailey, Malcom 87 Hanumanthaiyya, K. 116 Hidayatullah 122 High Court judgements: Kedar Nath Singh judgement 105; Ranjit

224

INDEX

Udeshi v. State of Maharashtra 105; R. Rajagopal v. State of Tamil Nadu; Srinivasa v. State of Madras 137 The Hindu 15 Hindu Mahasabha 15, 133 Hobbes 211 Holmes, Oliver Wendell 113 Husain, Tajamul 174 Hydari, Sir Akbar 27 Hyderabad 70

Kher, B. G. 189 Kothari, Rajni 41 Kripalani, Acharya J. B. 149 Krishak Mazdoor Praja Party 156 Krishnachari, T. T. 153, 119 Kumar, Ravinder 97 Kunzru, Hridaynath 144

independence 58 Indian Armed forces 98 Indian Constitution 54 Indian Independence Act 1947 67, 134 India Office in London 14 Indian Penal Code: Section 124-A of the Penal Code 8; Section 124A of the Penal code 105, 136; Section 295 of the Indian Penal Code 121; Section 508 of the Indian Penal Code 112 Indian Republic 4 Indian village panchayat 203 industrialist capitalist 49, 50 Industrial Policy Resolution 187 instituted and acquired sovereignty 12 inter-coalitional negotiations 50 interim government 68 International Institute of Human Rights in Strasbourg 83 International Labour Organisation 187 interventionist state 53 Irish Republic 198 Jainism 7 Jha, Shefali 39 Jinnah, M. A. 14 Kamath, H. V. 144, 183, 186 Kandath, Chiriyan 166 Kant 216 The Karachi Resolution 88 Karachi Resolution of Indian National Congress 186 Kashmir 70 Kaur, Raj Kumari Amrit 183 Kaviraj, Sudipta 44, 48

labour strikes 46 Lahore Resolution 24 Lahore Session of the League in March 1940 24 Lalbhai, Kasturbhai 187 land distribution 51 Landemore, Helene 4 landowning elites 49 League of Nations 202 Legislative Assembly 27, 67, 68 Licensing Act in 1692 110 Madras Congress 86 Madras Congress Session 1927 196 Madras Maintenance of Public Order Act 1949 138 Maitra, Lakshmi Kant 74 Malviya, Pandit Madan Mohan 88 Man, Bhopinder Singh 115 managerial bureaucratic class 51 Manchester Garden 15 Manipur 70 Manockji Nadirshaw Dalal 27 Marxists 89 Masani, M. R. 183, 185 Mathai, John 187 Mazzarella, William 112 Mehta, Hansa 183 Mehta, Pratap Bhanu 121 Mehta, Uday 12 Menon, V. P. 64 Middle East 202 militant peasant movements 46 minority rights 211 minority status 6 Mishra, S. N. 151 Montesquieu and Rousseau 199 Moore, R. J. 14 Motilal Nehru Committee 5 Motilal Nehru Constitutional Draft 83 Motilal Nehru Report 86 motivated reasoning 62

225

INDEX

Presidential Address 1929 203 Press Act of 1910 186 Prezworski, Adam 48 prima facie democratic legitimacy 1 princely states 197 private ownership 48 Proposal for Indian Constitutional Reform 186 Provincial Legislative Assemblies 134 Public Prosecutor v. Mantipragada Mrkondeyulu 112 Public Safety Acts 115 Punjab High Court 104, 132 pursuit of liberty 2

Mukherjee, H. C. 153 Munshi, K. M. 38, 75, 183, 188 Muslim League 69, 134 Nagappa, Sri 75, 174 Naresh, Vatsal 5, 58 nascent republic 8 National Congress Lahore 203 nationalist movement 45 nationalist policies 85 National Planning Committee 186 National Rural Employment Guarantee Act of 2005 8 Nehru, Jawaharlal 43 Nehru, Motilal 86, 200 Nehru Draft 86 Nehru Report 1928 186 Nehru’s republicanism 199 Nepal 4 New York’s Criminal Anarchy Law 108 New York Times v. Sullivan 124 Niharendu Dutt Majumder v. King Emperor 136 non-cooperation 216 non-violence 216 North-West Frontier Province 29

Queen Empress v. Bal Gangadhar Tilak 136 Quit India Movement 21, 46

Oath of the Tennis Court 210 objectives resolution 89, 197 Oligarchs 4 Pandit, Vijaylakshmi 71 Panniker, K. M. 171 Parliament House in central Delhi 64 Parolin, Guanluca 3 Partition 70; see also Partition of Bengal party of consensus 42 Patel, Vallabhai 45 Patna High Court 137 Pethick-Lawrence, Lord 28 Political debate postcolonial regime 45, 53 postcolonial transition 55 postcolonial world 217 Post War Economic Development Committee 186 Prasad, Brajeswar 73 Prasad, Rajendra 39

Rajagopalacjari, C. 21 Ram, Lala Shri 186 Ramgotra, Manjeet 6, 196 Ramji Lal Modi 121 Ramnath, Kalyani 6, 181 Ranga, N. G. 116 Rao, Krishnamoorthy S. V. 189 Rao, Shiva 15 Rau, B. N. 187 Ray, Kiran Shankar 98 realpolitik 3 reforms commissioner 27 reforms office 26 Representation of the People Act 121, 122, 123 republican virtue 217 Resolution on Fundamental Rights 213 Resolution on Fundamental Rights and Economic and Social Change 88 res publica 214 revolutionary socialism 108 Right to Free and Compulsory Education Act of 2009 8 Rousseau 209, 211 Rowlatt Act 73 Roy, Raja Ram Mohan 108 Royal India Navy rebels 95 Rowlatt Act 186 Russian Revolution 46

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INDEX

S. 4(1)(d) 137 S. 4(1)(h) 137 Saheb, Mohammed Ismail 172, 183 Sahib, Pocker 183 Said, Edward 123 Sajo, Andras 58 Santhanam, K. 75 Sapru, P. N. 27 Sapru Report 88 Sathe, S. P. 192 Satyagraha and Swaraj 214 Satyamutri, S. 20 Saxena, Shibban Lal 75 Schmitt, Carl 114 Second Simla Conference 31 Second World War 206, 216 self-determination (swaraj) 199 self-rule (swaraj) 216 Sen, Sarbani 11 Seth, Damodar Swarup 75, 188 Shah, K. T. 148, 151, 186, 188 Sharma, Krishna Chandra 184 Sharma, Pandit Balakrishna 75 Shroff, A. D. 187 Simla Conference 18 Simon Commission 19 Sind 29 Singh, Haricharan 121 Singh, Harnam 167 Singh, Hukam 148 Singh, Sardar Ujjal 167 Singh, Tara Master 17 Sinha, Satyanarayan 154 Sitaramayya, Pattabhi 167 The Social Contract 209 South Indian Railway strike 93 Soviet Communism 197 standing committees 65 Statement of Objects and Reasons 130, 131, 133, 137 Statutory Commission, headed by Sir John Simon 85 Stratchey Justice 136 sub-committees on tribal and minority rights 65 Subedar, Manu 27 Supreme Court 6, 100; Amar Nath Bali v. The State 137; K.A.Abbas

v. Union of India 105, 122; Tara Singh Gopi Chand v. The State 136; Union of India v. Naveen Jindal 124 Swaraj 210 Swaraj Party 210 Tagore, Rabindranath 217 Tejani, Shabnum 6, 163 Thakurdas, Purushottamdas 186 Thakur Das, Bhargava 151, 189 Thompson, E. P. 43 thoroughgoing modernisation 45 Tilak, Bal Gangadhar 214 Transformational Constitutional Project 42 transformational state 69 Trans-Jordan and Iraq 202 Tunisia 3, 4 Tyagi, Mahavir 171, 189 Uniform Civil Code 190 Union Government 30 Unionist Party in Punjab 16 United Nations 187, 216 United States 3 United States Supreme Court 107 universal adult suffrage 120, 208, 211 Unlawful Activities Prevention Act of 1967 124 UPA Government 80 US Constitution 119 Vasakh, Karel 83 Viceroy 32 Viceroy’s Cabinet 17 Viceroy’s Council 17, 187 Viceroy’s Executive Council 25, 28 Waldron 2 Wavell, A. P. 14 Wavell, A. Viceroy 14, 98 Weimar Republic 117 Western Imperialism 207 Western Punjab 29 We the people 10, 11 Whitney v. California 113

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