[Ed Note: As part of our blog round-table book discussion on Arvind Elangovan’s book Norms & Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50, this is the review by Vanya Vaidehi Bhargava. The introductory post and the links for the other reviews (Gupreet Mahajan) can be found here.]
Pushing back against ahistorical, decontextualised approaches to the Indian constitution, Arvind Elangovan’s Norms and Politics places it in its longer and immediate historical-political contexts— the political history of the 1930s and ‘40s. Elangovan persuasively makes three key arguments. First, he claims that Indian constitutionalism was no simple extension of colonial benevolence. He successfully demonstrates that British officials often undermined attempts to realise a principled Indian constitutionalism — as exemplified by B.N. Rau, the forgotten civil servant through whom Elangovan makes his main arguments (Chapters 2 and 4). Second, Elangovan rightly reminds us that rather than a product of seamless nationalist consensus, the Indian constitution was drafted on the back of uncompromising positions on a unified India and Pakistan adopted by the ‘Indian nationalist’ Congress and ‘separatist’ League. This made a constitutional consensus around a federation difficult (Chapter 3-5). The Indian constitution stemmed not from the Congress and League attempting to transcend their respective politics and arrive at a compromise-driven consensus, but was drafted against the background of the Congress calling for the Constituent Assembly regardless of the League’s refusal to participate in it. Political conflict and exclusion were thus integral to Indian constitution-making (Chapter 4). Third, the Indian constitution was not simply an apolitical normative document but produced in deep engagement with politics, often also overwhelmed by it (Chapter 3, 5-6). Disrupting holistic notions that India’s constitution is simply a univocal, consensus-driven normative document, Elangovan argues that it is marked by a history of political conflict. As his discussion on fundamental rights shows, rather than straightforwardly representing an attempt to transcend particular political interests and agree on abstract normative principles, Indian constitution-making was often overwhelmed by different political actors attempting to write their conflicting political interests and anxieties into the constitution.
Norms and Politics effectively warns against tendencies to view India’s constitution as a univocal, decontextualised and depoliticised nationalist morality or idealism. Remembering that political conflict, political interests and exclusion were integral to Indian constitution-making is a sobering reminder to temper uncritical celebrations of Indian nationalism, liberalism, and indeed Indian constitutionalism as embodying only a selfless principled inclusivism. By forcing us to acknowledging this history, Elangovan promotes a more grounded understanding of constitutional — or, indeed, broader political — normativity and idealism, as often enmeshed in rather than wholly abstracted from political interests. (Indeed, as alluded to by Elangovan’s own analysis of Ambedkar’s approach to fundamental rights, even demands for equality and justice from underprivileged groups are not based on pure, abstract idealism but linked to political interests). Norms and Politics also promotes a more realistic understanding of the Indian constitutional normativity as predicated not on harmonious unanimity but discordant multivocality, friction and conflict. Furthermore, a critical understanding of how political interest, conflict, and exclusion marked Indian constitution-making can itself serve as an impetus to strive for a more inclusive, consensus-driven and principled politics in the future.
However, at points, the book borders on suggesting that Indian constitution-making was solely a product of ‘politics’ — itself defined largely in terms of political interests rather than normative values, at the expense of normative constitutionalism as exemplified by Rau alone. For example, it argues that far from representing an ‘ethical body’, Constituent Assembly was ‘an instrument of negotiation’ between the Congress and Muslim League (Chapter 3, p. 116). It remains unclear whether the Assembly is allowed normative intent despite entanglement with political interests and exclusion. Fundamental rights are persuasively demonstrated as translations of anxieties to protect political interests, but it remains unclear whether they are also reduced wholly to these (Chapter 6). This interpretation, suggesting that battles over political interests entirely displaced a concern for normative values in the making of the constitution, is encouraged by the following sentence in the conclusion: ‘norms gave way to a history of politics in the making of the Indian constitution’ (p. 238).
Elangovan is right to strongly challenge notions that the normativity in India’s constitution is simply the product of decontextualised, depoliticised theoretical principles, and to show that norms are often not above political interests. But is it possible to admit a link between norms and political interests without reducing the former to the latter? Does Ambedkar’s political interest in enshrining the principle of equality and non-discrimination negate the significance of his espousing these normative principles? Similarly, does the fact that Munshi’s approach to fundamental rights aligned with Hindu political interests necessarily mean that his desire to not have the Indian nation permanently divided and overwhelmed by community identities was devoid of normative values? Put differently, does a person or party espouse norms only when they fully or partially sacrifice interests (as in Rau’s constitutionalism) or even when their norms align with their interests (as with the Congress, the League, Munshi, Ambedkar etc.)? Further, does a political actor articulate normative values only when these accommodate the political interests of all or most parties (as in Rau’s case) or also when this involves contesting (as in the case of the Congress and the League) how another actor defines the political interests of particular groups (e.g. Muslims) or seeks to realise normative values like liberty, equality or fraternity?
This brings me to another question: is political conflict necessarily a conflict of interests, or sometimes also of normative visions? If so, could the political conflict between the Congress and the League, and their respective demands for a unified India and separate Pakistan, not be viewed as much as a normative conflict as a conflict of interests? As such, a constitutional consensus around a federation may have been hampered by the Congress and League assuming uncompromising normative positions, and refusing to seriously consider each other’s normative visions regarding how to realise justice, collective autonomy and fraternity. The Constituent Assembly was formed and the Indian constitution was, then, drafted in the context of deep normative conflict which was regrettably not resolved by the parties involved. And it was drafted following the exclusion (by both the Congress and the League itself) of the League’s normative vision. Thus, the political conflict that overwhelmed Indian constitution-making did not dispense with norms altogether but itself represented a normative conflict. Similarly, while the Indian constitution may not represent a moment of perfect unanimity over abstract normative principles, it may reflect a conflict of different normative-political concerns, or indeed of different means of realising shared normative principles like liberty, equality, justice or fraternity. And while it excluded the normative vision of the League, might not the Indian constitution ultimately still embody multiple normative values, which may be cherished and drawn upon for political-moral inspiration?
Another interesting question raised by the book relates to consensus and conflict. Elangovan convincingly shows how the Congress and League failed to overcome conflict to arrive at a compromise-driven consensus around a federation. But while the Congress could have clearly done much more to bring the League to the table, a tougher question is raised by Jinnah’s ‘impossible’ demands (p. 74) and refusal to participate in constitution-making even after Rau’s reassurances. Does political history, then, show that unbending positions adopted by certain political actors sometimes end up ensuring that consensus-building becomes a ‘highly circumscribed’ affair (p. 69)? (Indeed, without suggesting equivalence, could constitutional consensus-building have included the Rashtriya Swayamsevak Sangh?). Even if we disagree with this, is it possible that the polyphonic, conflict-ridden process of Indian constitution-making is precisely what arriving at an (admittedly circumscribed) normative consensus often looks like when attempted in the thick of politics by multiple political actors? If so, might the constitution be a contested, conflict-ridden and a consensus-driven normative document? After all, all parties ultimately compromised on some of their political interests and normative values to partly accept, even if reluctantly, those of others. If the Indian constitution can still be read as a moment of (conflict-ridden) normative consensus, then perhaps political-historical and normative political-theoretical approaches to India’s constitution serve different academic ends and can fruitfully co-exist. While the former legitimately seeks to temper excessive romanticisation by highlighting tension, conflict and exclusion, the latter legitimately seeks to preserve and draw inspiration from normative consensus, however conflict-ridden or precarious it may have been.