Category: Blog 1 – Celebrating Scholarship on the Indian Constitution

Debating Difference (2011) was motivated by three larger concerns. First, at a time when Indian political thought barely figured in scholarship in political theory, it provided a normative reconstruction of debates over minority rights and affirmative action in the Constituent Assembly (1946-49). In bringing political thought at India’s founding into into conversation with contemporary political theory debates on multiculturalism and social justice of the 1990s and 2000s, I was also motivated by a second concern. Instead of the standard approach of political theorists, of focussing on the thought of exemplary thinkers– a Gandhi or a Nehru for instance- Debating Difference made a case for taking the Indian Constituent Assembly debates seriously as a field of theoretical reflection in their own right, as a multi-authored, multi-vocal text. Third, I sought to challenge influential contrasts between Western and non-Western thought, as well as elite and subaltern languages of politics that were prevalent in Indian intellectual and political debates.  

Looking back at some of the book’s main findings, it showed, first that India’s constitution-makers were ahead of their time in many respects, notably constitutionalizing affirmative action and minority rights within a broadly liberal framework of equal citizenship, much before Western democracies did. In doing so, they developed an innovative, sophisticated, and sometimes contradictory body of public reasoning on the role of the state in relation to ethnic diversity, instituting a framework of limited secularism for instance, which recognized  some religious family laws (Hindu, Muslim, Christian and Parsi), and also state-led religious reform. Second, Debating Difference showed that the constitution’s normative framework did not reflect the vision of a single thinker (eg. Nehru or Ambedkar), nor of a small oligarchy (see Austin), nor of the dominant Congress party alone. Instead, the constitutional settlement was the result of the participation of, and debate between, a wide range of political actors. Constitution-makers drawn from diverse religious, caste, tribe, and regional backgrounds had differing and sometimes conflicting opinions and interests, which were voiced and recorded in the Assembly’s proceedings. Nehru for instance, disliked caste-based reservations; these were not Dr Ambedkar’s first preference; yet both leaders reluctantly accepted caste-based reservations, which have since become a key, if controversial feature of India’s political landscape. Third, a normative gap remained in dominant nationalist imaginaries with regard to minority rights. Nationalist concerns regarding national unity and state stability, bolstered by liberal republican concerns relating to the primacy of individual centred secular citizenship, constrained the space for group-differentiated rights. These came to be limited, with legislative quotas for religious minorities withdrawn during constitution-making, which marked a moment of containment in the long career of group-differentiated rights in India.  

With the benefit of hindsight, the flaws of the Indian Constitution are readily apparent. Constitutional rights and remedies are hedged by limitations, emergency provisions bestow wide powers on the state to truncate individual and collective liberties. Nevertheless, the making of the Indian Constitution remains instructive, offering lessons on how sustainable agreements can be reached in large and divided polities. Our research in PACT (2022-25) will highlight lessons from Indian constitution-making of comparative relevance, while critically examining its unfulfilled potential for pluralism and democracy in the present.  

Histories and meanings of Indigeneity in India and elsewhere are important themes in my research and while the text of the Indian Constitution does not include the word Adivasi, the speeches and silences in the Constituent Assembly Debates offer important insights. I have suggested that Jaipal Singh Munda’s speeches and interventions in the Constituent Assembly speak to a vision of India that remains unexplored in scholarship on the inclusions and exclusions embedded in what is considered a foundational text. His repeated calls for respect for Adivasi sovereignty, recognition of their histories, and for meaningful inclusion as equals were opposed, ignored or ridiculed. More research is necessary to determine whether and how a more open engagement with some of these ideas at the time could have shaped the meanings of freedom and democracy for a more inclusive nation. In fact, a closer reading of Munda’s speeches is likely to reveal ways of re-imagining the nation. As some of my other research shows, an inability to grapple with Adivasi conceptions of law, legality and autonomy lies at the heart of critical contemporary issues in India today. It is wonderful to see an increasing interest in Adivasi histories and claims in legal scholarship, and I look forward to more research and conversations about Adivasi and tribal identities, and their relationship to histories and contemporary understandings of Schedules V and VI of the Indian Constitution. I am also excited about a couple of my new projects that will bring some of this research in conversation with ongoing work on questions of Indigenous rights and identities beyond national and regional focus.

When Granville Austin wrote his magnum opus, The Indian Constitution: Cornerstone of a Nation in 1966, he opened up the possibility for imagining India’s ‘founding document’ in ways that were difficult previously. He demonstrated that the Indian constitution was not only a legal document produced in the elite boardrooms but had a deep connection to the popular and populist anticolonial struggle of the previous decades. In connecting the legal with both history and the political, Austin paved the path to think about the Indian constitution in innovative ways that would encumber the social, cultural, political, and economic worlds in which the constitution remained imbricated. If anything, scholarship on the constitution since Austin and in contemporary times owes an enormous debt Austin’s pioneering insights in this regard.

Indeed, in my own work, though I depart from some of Austin’s readings of the constitution, I take Austin’s fundamental proposition, of writing a historical and political history of the Indian constitution seriously. In my first book, Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50 (OUP, Delhi, 2019), I argued how the work of this impeccable bureaucrat quite illuminatingly illustrated the faultlines that existed in debates around the constitution vis-à-vis both the colonial state and Indian anticolonial nationalist leaders. In other words, the constitution as a document never fully represented the interests of either the colonial state or nationalist thought. This has interesting implications for the subsequent debates in the constituent assembly and the writing of the Indian constitution, completed between 1946 and 1949, and adopted in 1950. The most significant being that at the moment of the framing of the constitution, the primary objectives of building a nation had to be set aside in the interest of a strong state. Thus, in the interest of historical accuracy, we can never view the making of the Indian constitution synonymously with the making of the Indian nation. If anything, the latter is a project that will always be removed from the constitution and will be in tension with the founding document because of the historical, political process through which the constitution emerged.

In my current project, building on Norms and Politics, I aim to write a history of the Indian constitution in the long twentieth century by focusing on the idea, category, and lived experiences of Minorities. From a historical standpoint, it would be interesting to account for the multiple ways in which the ‘imperial’ framework and the postcolonial ‘global’ framework intersected with ideas of the constitution thus underscoring the complicated historical terrain on which any nation’s ‘founding document’ stands, including and especially India’s.

An important thread of my academic research as a lawyer and a historian has centered the inclusions and exclusions in Indian citizenship. It began with an interest in 2012 closely reading through the Indian Constituent Assembly Debates and in particular, the debates over the Directive Principles of State Policy to find the different expressions of “the people” in whose name the text of the constitution was drafted (see here and here). The Debates, as this project wonderfully demonstrates, are extraordinarily rich in detail, demonstrating how agreements were arrived at, and how dissent – and indeed, concurrent priorities – was treated. I ask: the Indian constitution was to be a transformative text that would bring about a “social revolution”; what aspects of such a revolution were included in the text? Since then, I also worked on citizenship from the perspective of emergencies and civil liberties  (see here and here), both historically and in the contemporary moment. Like the essays about constitutions and social revolutions, the question of colonial continuities is important here. I show how the argument from colonial continuities – that is, that a law should be struck down as unconstitutional because of its colonial provenance, for example, the law of sedition –  historically spanned the breadth of the ideological spectrum. If so, focusing on which historical actors are demanding changes to do away with colonial legal structures is important; it may paradoxically, result in a narrower conception of citizenship. My forthcoming book, Boats in a Storm: Law, Politics, and Decolonization in South and Southeast Asia 1942 – 1962 is also about the inclusions and exclusions of Indian citizenship, but set in a postwar world of unraveling migrant networks across the Indian Ocean in the age of decolonization, from the time of the Japanese occupations in Southeast Asia during World War II to the military coup in Myanmar in 1962. It follows South Asian diasporas as they navigated this postwar world and encountered jurisdictional borders that would consequential for the citizenship that they could hold: did they become constitutional minorities or remain perpetual migrants overseas? In a sense, Boats also asks a question about “the people” that the very first essay based on the Debates did, but in ways that attempt to look beyond the histories of new nation-states. Many more histories of Indian citizenship in the age of decolonization remain unwritten (see here), and I am excited to see what the close readings of the Debates generate. 

We think of the Indian Constitution as a founding document, embodying a moment of profound transformation from being ruled to becoming a nation of free and equal citizenship. Yet the working of the Constitution over the last seven decades has often failed to fulfil that transformative promise. Not only have successive Parliaments failed to repeal colonial-era laws that are inconsistent with the principles of the Constitution, but constitutional challenges to these laws have also failed before the courts. Indeed, in numerous cases, the Supreme Court has used colonial-era laws to cut down or weaken the fundamental rights. The Transformative Constitution by Gautam Bhatia draws on pre-Independence legal and political history to argue that the Constitution was intended to transform not merely the political status of Indians from subjects to citizens, but also the social relationships on which legal and political structures rested. He advances a novel vision of the Constitution, and of constitutional interpretation, which is faithful to its text, structure and history, and above all to its overarching commitment to political and social transformation.

The anti-colonial movement in India in its quest for political self-rule produced a vocabulary of political rights which gave salience to dissidence as legitimate citizen action. Did the founding moment of the Indian Republic accrete this vocabulary and what is the relationship it shared with the post-foundational legal order? The two questions can be analysed through a biography of sedition in India.  A political etymology of sedition demonstrates that it was a substantive site of challenge to notions of colonial legality. The law against sedition criminalized the possession and promotion of a range of emotions against the colonial regime, including disaffection. These host of emotions, or affect, criminalized by the law, however, were reclaimed by the nationalists particularly under the Gandhian leadership as rightful dissent. The crime of affect was translated into the affect of patriotism, exemplified in Gandhi’s call for sedition as the highest duty of every citizen against an unjust state.

This anti-colonial vocabulary of sedition was deliberated at the founding moment and the initial years at two substantive sites which possibly resulted in a duality of meanings- first in the Constituent Assembly’s deliberations on restrictions on the fundamental right to freedom, and second in the Provisional Parliament’s enactment of the First Constitutional Amendment.  The Assembly’s choice between retaining or deleting sedition as a constitutional restriction on freedom of expression was governed by the tension between relative precedence and the relationship between freedom of the individual and obligations of the state. The long and encompassing list of restrictions demonstrated the preponderance of the security discourse of the state over the right to freedom but sedition was removed from the list. The removal was tethered to the argument that the law against sedition ignited the memory of colonial repression for many of the Assembly members who had been charged under it. A law which criminalized affect was removed from the constitutional text, very much on affective considerations. An ‘originalist’ account would hence conclude that sedition was not a constitutional restriction on free speech for the makers of the Constitution. If the law continued on the statute book, it was the task of the legislature to repeal it, but also a task specifically not undertaken by the Provisional Parliament- the second avatar of the Constituent Assembly.  The Provisional Parliament, instead, inserted ‘public order’ as a constitutional restriction on free speech and during the debate on the Amendment Bill, one of the members famously remarked that sedition as preaching of disaffection cannot be criminalized but sedition as an offence against public order surely would.

Is there a constitutive split between how the Constituent Assembly and the Provisional Parliament read sedition? While the Assembly did not explicitly assume the anti-colonial vocabulary of sedition which celebrated the act of disaffection, it certainly did not criminalize it. The Provisional Parliament while debating the First Amendment, perhaps did the same by transcending the affective dimension of the law to the effect that the law should not criminalize mere possession and spread of emotions, but only threats to public order. However, by creating the possibility of reading sedition alternatively as a public order offence, it substantively diluted the element of political dissent in it. A task that was completed by the Supreme Court in 1962 by upholding the constitutionality of sedition as a crime against public order, marking the complete erasure of its anti-colonial vocabulary.   The lived reality of law in the succeeding decades of the commencement of the Republic, is another story to tell where the quotidian uses deviate from the public order conception of the law. The executive discourse of the state, in which the law was routinely being used, until it was suspended by the apex court on the ground of glaring abuse in 2022, in fact has restored its affective dimension, with the law being used in cases marked by an absence of affection, read dissidence, for the government.