Constitutionalism without Sovereignty?

[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 last review in the series by Arudra Burra. The introductory post and the links for the other reviews (by Gurpreet Mahajan, Vanya Vaidehi Bhargava, and H. Kumarsingham) can be found here.]

I

The title Norms and Politics captures, in a very compressed way, much of what is most interesting about Arvind Elangovan’s book. I will focus here on his account (in chapter one) of B. N Rau’s work as Officer on Special Duty in the Reforms Office, tasked with the mammoth job of adapting the existing laws of British India so that they would come into conformity with the Government of India Act, 1935.

Elangovan juxtaposes Rau’s constitutionalism (‘norm’) against the ‘politics’ of the implementation of the Act, both by the colonial authorities as well as by their anti-colonial opponents. What does it mean to say, then, that Rau’s distinctive contribution to the Reforms process was to view the 1935 Act as a constitution, in a way which put him at odds with both the colonial administration as well as the anti-colonial leadership? I offer some reflections on this question below, and suggest that Elangovan’s study holds important lessons for how we should view the 1950 Constitution, both at its founding and today.

II

As I understand Elangovan, Rau’s commitment to constitutionalism seems to have had three elements. First, there was the importance of treating the 1935 Act as a “fundamental” rather than an “ordinary” piece of legislation; in particular, issues of merely “administrative” convenience in interpreting ordinary legislation (on trade unions, or electricity and boilers, say) had to give way, for the purposes of adaptation, to the broader aims underlying the Act.

The second element of Rau’s constitutionalism was to take seriously the aim of increased political and administrative participation of Indians through the scheme of Provincial Autonomy envisaged by the Act, according to which the Provinces of British India were to be governed by popularly elected Ministries, though within a framework of “safeguards” which allowed for the exercise of power by colonial authorities such as the Governors of the individual provinces.

The third element of his constitutional vision was the importance of specifying in detail the nature of the power and authority of various constitutional organs such as the provincial legislatures and the office of the Governor.

Now I am not sure that Rau’s constitutional vision, as just described, was all that distinctive or radically at odds with that of the colonial authorities. To be sure, the authorities in London did express alarm at Rau’s “statement of guiding principles” governing the adaptation process, and ended up rejecting them. However, their alternative statement does not seem prima facie to either have been unreasonable, or for that matter designed to reduce the scope of Provincial Autonomy.[1]

I also wonder if Elangovan is too quick to extrapolate from the disagreements within the Reforms Office to the attitude of the colonial authorities as a whole. The question of how to handle the trade-off between “administrative convenience” on one hand and a “purposive” reading of the 1935 Act as a Constitution on the other was discussed by colonial authorities in many places and “administrative convenience” did not always win.

A vivid example is given by David Potter in India’s Political Administrators (Potter 1986). The issue concerned the question of what to do with confidential secretariat records maintained by the Provincial Governments on the policies of the Raj with respect to the leadership of “subversive” political movements. Should the leaders of these subversive movements, who would now come to power in the Provinces after the 1937 Elections, be allowed access to this material?

The “administrative convenience” school of thought (represented by the Governments of Bombay and Madras) maintained that they should not. But they were heavily outnumbered: the overwhelming view of the Provincial Governments was that popularly elected Ministers overseeing these Departments must have access to all relevant records if the 1935 Act was to be workable. The Home Department at the Centre seconded this view, writing that “[t]he British Government have agreed to the transfer of responsibility and it would hardly be consistent to refuse to make the records available to those to whom the responsibility is transferred.” This is precisely the constitutionalist vision Elangovan ascribes to Rau.

III

So I would argue, contra Elangovan, that Rau’s overall orientation towards the 1935 Act was broadly in alignment with the official position of the Government of India. In fact, I think the alignment goes further, in a way which sheds light on Rau’s later work as Advisor to the Constituent Assembly.

The official colonial view on the 1935 Act was that it facilitated Indian self-government by giving (in an undoubtedly limited way) Indians particular forms of executive power and authority, while simultaneously limiting or transforming those of the colonial authorities. On this view, the fundamental job of a constitution is specifying how power and authority are allocated and constrained. The status of the Government of India Act, 1935 as a Constitution rests precisely upon the extent to which it was concerned with these questions.

The value of such a constitution will depend upon the ways in which power is actually exercised by the various authorities constituted by it. Crucially, the evaluation of a constitution of this kind will be a local or ‘bottom up’ matter. It will be possible to evaluate in a relatively fine-grained way whether the allocation of constitutional authority in particular cases has worked as designed (should, for instance, electricity and boilers belong to the Federal rather than the Provincial list after all?).

Let me suggest that Rau operated upon as ‘authority’ conception of what constitutions are as sketched above. Corresponding to such a conception will be a set of practices and norms necessary for the constitution to work as it is supposed to: let us say that these constitute an ‘authority’ conception of constitutionalism. I think Rau’s conception of constitutionalism was along these lines.

The promise of British incrementalism was that the experience of exercising this power, limited as it was, and the more general exigencies of political life within the ambit of the constitution would help settle political differences (such as the Hindu-Muslim question) that might otherwise seem intractable.

Whether or not the colonial authorities acted in good faith on this promise is another matter, but I think it is important to note that Rau seems to have held it later in his career as well – for instance in his impassioned plea to Jinnah for the Muslim League to join the Constituent Assembly in September 1948. Here too, it seems to me, Rau’s views were broadly in line with those expressed by the colonial authorities in the Cabinet Mission Plan.

IV

Of course, constitutions do more than specify the allocation of power; they are also devices to articulate claims of sovereignty, particularly, in a democratic era, popular sovereignty. And of course, while the Government of India Act, 1935 transferred ‘responsibility’ in some respects, it did nothing of that sort with sovereignty. If one operates on a ‘sovereignty’ rather than an ‘authority’ conception of what constitutions are, then something like the 1935 Act will seem woefully inadequate, a betrayal of what has been demanded in terms of self-rule.

This concern with sovereignty, it seems to me, is what was central to the anti-colonial critique of the 1935 Act – Nehru, for instance, called it “a new charter of slavery.” If one has an all-or-nothing conception of sovereignty (as the Congress did at that time), then the evaluation of the Act is a simple matter – nothing less than complete sovereignty would be acceptable.

I think Elangovan is on the mark in his discussion of the tension between Rau’s position on the implementation of the 1935 Act and that of the Congress. But I would not frame it as he does, as a tension between constitutionalism (Rau) and politics (Congress). Rather, I think it points to a tension between the ‘authority’ and the ‘sovereignty’ conception of constitutions, and why they are to be valued.

What forms of participation are appropriate for when one is committed to constitution-as-sovereignty but is offered only constitution-as-authority? This was the Congress dilemma. It is not obvious to me that the appropriate standards are those which would govern someone who is already committed to constitution-as-authority. And a decision to diverge from constitutionalism-as-authority need not thereby be an unprincipled one, even when it is driven by the desire for political power.

V

So much for my reservations about Elangovan’s historical analysis with respect to the 1935 Act. Let me turn to what I find valuable about Elangovan’s articulation of Rau’s position in thinking about the 1950 Constitution. This is the space opened up to talk about constitutionalism without sovereignty. Our constitutional imagination, I think, has been distorted by the fact that it has been dominated by the nationalist romance of sovereignty. It has therefore neglected questions involving the exercise of power, of a sort we would naturally focus on when concerned with authority.

I think our preoccupation with sovereignty gives rise to at least three distortions. The first is that it allows us too easily to marginalise the traditional constitutional question of how executive authority should be constrained. “The Founding Fathers have led the country to Independence, given us our Constitution, and want to implement the social revolution which will finally lead our people out of slavery.”

If this is the story we tell ourselves, we are unlikely to worry too much about just how the Constitution in question has allocated power and authority and how this power is being exercised by those in charge. And in fact, we have not taken very seriously the question of how to constrain the coercive power of the State as such. As a result, we lack a specifically constitutional tradition with which to challenge power when it is held by the “wrong” people or exercised for regressive ends.[2]

The second problem I see with our preoccupation with sovereignty arises from our current political movement. When we locate the moral worth of the Constitution in its moorings in the particular histories of Congress nationalism, Indian independence, the Constituent Assembly Debates, and so forth, I think we constrain its appeal. Why should a Constitution, so described, be regarded as part of a valuable common heritage by, e.g., a member of the contemporary Hindu right – especially when the nationalist narrative is one in which the Hindu right is seen, perhaps quite rightly, as marginal if not antithetical to the story of the Constitution? If constitutional values are to be a matter of deep political consensus, they have to be articulated in ways which don’t appeal to nationalist histories of constitution-making, for the premises of that nationalism are increasingly under attack.

Finally, there are resources to think about constitutionalism-as-authority which we deny ourselves when we see the question of constitutionalism solely through the lens of sovereignty. As Rohit De has documented in the case of the Federal Court of India (De 2012), there is a rich tradition of defending individual liberties in Indian courts during the colonial era, even at the height of the Second World War.

The readings of the Preamble during the CAA-NRC protests, and the emphasis on a more inclusive notion of “We the People,” were deeply moving, and drew upon the nationalist tradition of constitutional sovereignty. But in thinking about the particular injustices of the NRC, the denial of due process and the violation of the principles of natural justice in determining who counts as a citizen, the detention camps for those who cannot prove it satisfactorily, I would argue that it is the colonial tradition described by De, premised on concerns with authority and power, which is more effective, both legally and politically. When our focus is on sovereignty, what matters the most about Indian constitutionalism is the break from the colonial order which signalled in 1947 and 1950. This makes it harder for us to see this colonial tradition as ours.

Elangovan’s work on B. N. Rau opens up, in my view, exciting avenues for correcting some of these distortions. Though there is much more to this valuable book that alone is a welcome contribution.  

References

De, Rohit. 2012. “Emasculating the Executive.” In Fates of Political Liberalism in the British Post-Colony, edited by Terence C. Halliday, Lucien Karpik, and Malcolm M. Feeley, 59–90. Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9781139002981.004.

Potter, David C. 1986. India’s Political Administrators. Oxford University Press.

The author expresses gratitude to Prof. (Dr.) Anuj Bhuwania for comments on an earlier draft of this review.

[1] It reads ‘If Parliament had had time to deal with all these details, what, bearing in mind the sort of way in which it has, dealt with other analogous points, would its decision have been about this particular point?’ (46).

[2] Scholars of the Indian constitution sometimes quote Arendt’s warning that attempts to solve the social question by political means leads to terror – but do not seem to take it very seriously.

Arudra Burra

Arudra Burra is an assistant professor in the Department of Humanities and Social Sciences, IITD. He joined the department in December 2012, after post-doctoral fellowships at the Centre for the Study of Developing Societies (CSDS), and the Program in Law and Philosophy at the University of California-Los Angeles (UCLA). Dr Burra holds a JD from Yale Law School and a PhD in Philosophy from Princeton University Arudra's primary research interests are in moral and political philosophy, as well as the philosophy of law. He also works in the area of legal history, studying the ways in which laws and legal institutions are able to survive drastic changes in the political regimes that support them. His recent publications include- Civil Liberties in the Early Constitution: the CrossRoads and Organiser cases In Satvinder Juss, ed. Human Rights in India (Routledge, 2019).

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