How Should We Historicize the Indian Constitution?

[Ed Note: In the conclusion to our blog round-table book discussion, Professor Arvind Elangovan writes a response to the reviews for Norms & Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50. The introduction by Prof. Rohit and the links for the other reviews (by Gurpreet Mahajan, Vanya Vaidehi Bhargava, H. Kumarsingham, and Arudra Burra) can be found here.]

It has been an incredible honor and privilege to have my book, Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50 (OUP, Delhi, 2019) be the subject of a public discussion amid this fantastic gathering of scholarly and interested minds at Law and Other Things. Like many, I have been following the discussions in this forum for a few years now and it has always been a learning experience; these past few weeks have been nothing less.

My sincere and warm gratitude to Vikram Raghavan for suggesting this possibility and as always with indefatigable energy, ensuring its successful production; to Rohit De for his kindness, generosity, and time to organize this discussion and to lead the way with an introduction; to the incredible team at LAOT, especially to Dayaar Singla and Gayatri Gupta who remained in touch about the process and along with the whole team have so efficiently and expertly put together this forum, as they have consistently done for others, as well; and, to the four reviewers, Prof. Gurpreet Mahajan, Dr. Vanya Vaidehi Bhargava, Dr. Harshan Kumarasingham, and Prof. Arudra Burra for their kindness, enthusiasm, thoughts, and keen and incisive analysis, all of which have enabled me to revisit some of the core propositions of the book in particular and some features of the Indian constitution in general.

The reviewers’ comments have given me a lot to think about. Naturally, I will not be able to reflect on or respond to all the thoughtful comments, critique, and reflections that the reviewers have offered. Given the limitations of time and space, I will focus on two distinct but interrelated aspects – the place of history in accounts of the making of the Indian constitution and, briefly, the role played by the bureaucrat, Sir B N Rau. In thinking about these two interrelated aspects, I hope to highlight what I view as an important theme emerging from the reviews, namely, the challenges that we encounter in writing political histories of the Indian constitution. In more ways than one, I think this speaks to a pertinent question both of and for our times: how should we historicize the Indian constitution?


Histories and Constitutions

Is there a place in constitutional literature for political histories of the Indian constitution? At the outset, this question seems deceptively simple; how can anyone disagree with the fact that conventionally, constitutions are framed by political leaders at a given historical time and hence, by their nature must be political? Yet, we must ask, why is it that there is a deep reluctance to think about constitutions as political documents – by which I mean (among the many possible definitions), a fundamental arrangement of political power to be disbursed through a set of institutions which regulates the relationship between the state and its citizens, even as it enumerates the rights of the latter? Should it not be the case that such an arrangement would inevitably reflect the relative positions of power occupied by the framers of the constitution, a position, we might add, that had evolved historically? If we agree to this elemental description of how constitutions are made, then we must reflect on why such histories have predominantly not been told of the Indian constitution.

One reason is precisely because of the disciplinary tensions between history and political theory. Several scholars have pointed out how the Indian constitution rests at the cusp of two disciplines, where often the moment of independence becomes an imaginary dividing line between the two disciplines and correspondingly a ‘history’ of the constitution until 1947 gives way to the ‘norms’ of the constitution in the post-colonial period. Yet, there is another aspect to the disciplinary tensions between norms and histories. Often, invocation of norms does not remain just in the province of a normative discourse. With time it claims to become historical knowledge. The normative begins to stand-in for the historical, eventually giving way to the normative becoming the historical. This process of supplanting of historical narratives by a normative discourse has effectively occurred in many of the written accounts of the Indian constitution.

I see this tension between norms and history in Mahajan’s enormously helpful and thought-provoking review. Mahajan effectively makes the case for reinforcing the value of recovering the normativity of the constitution but only by placing history in parentheses, as it were. At different places, Mahajan notes the following: “The historical account is indeed important but do the preceding occurrences adequately explain what followed in the Assembly?” Further, she points out, “History does matter; it forms the backdrop against which specific issues emerge, and particular justifications are offered…However there was no predetermined path.” There are more examples, of course. While I agree that there is always a possibility of “newness” emerging at any given moment, I am less inclined to subscribe to the view that the historical conditions or circumstances have a marginal role to play in explaining this “newness.” If, “historical consciousness” matters, as Mahajan suggests and I concur, then we are underserved if we immediately relegate it to the “background” and not treat it as central to examining the question at hand. Indeed, we must wonder, what enables this suspension of history in the first place?

As an example, let us consider Mahajan’s question raised above, namely, does history adequately explain the decisions arrived in the constituent assembly? If we take a political-historical approach, we can argue that the peculiar colonial context of the evolution of Indian constitution had an important role to play in determining the ways in which members of the constituent assembly came together and articulated their arguments. This is not to say that the framers of the Indian constitution were entirely and solely a product of British political imagination. Rather, the constraints of constitutionalism as it emerged in the four decades preceding the meeting of the constituent assembly played a critical role in ensuring the adequate representation of minorities in the constituent assembly and in providing discretionary powers to the Governor, to mention two examples that Mahajan provides. While the details of this story are too long to be retold here, suffice it to note that it was not the peculiar generosity of the framers of the constitution or an entirely selfless act that the framers performed by granting space for the minorities. A strong current of conflictual political history of the previous decades informed the decision making in the constituent assembly.

Let us also consider here another and one of the more popular examples in this regard, namely, the granting and later withdrawal of reserved seats in the legislature to religious minorities, a topic that is expertly discussed by Shefali Jha and Rochana Bajpai, among others. The fact that we do not know the exact mechanism by which Vallabhbhai Patel and others prevailed upon the religious minorities to withdraw their demands for reserved seats in the legislature gives us a pause to only imagine the conversation that would have occurred between the religious majority and minorities. Here, there is clearly a history that we do not know and perhaps can never know (unless someone comes across a secret treasure trove of correspondence in this regard). But what remains is a normative account, namely, the nationalization of the claims of minorities where a fundamental right to practice religion was enumerated regardless of the fact that these communities were denied guaranteed political representation in the legislature. If histories matter, then, I suggest they should productively and creatively interrupt our normative assumptions. The necessary indeterminacy of history will always conflict with circumscribed certainty of normativity. If they are aligned, then something is amiss.

Bhargava’s sharp reading and assessment of these tensions between histories and norms is wonderful and I agree with it completely. In particular, I am with Bhargava when she notes, “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.” But the question is, can history play a central role in this endeavor? Though Bhargava recognizes the value of an accurate, conflict-ridden historical account of the constitution, she asks whether we must necessarily lose our focus on normativity even when we examine political conflicts. In other words, aren’t political conflicts, at one level, a conflict of normative visions? If that is the case, then, is it not possible to incorporate both – maintain a healthy skepticism of “excessive romanticisation” (of the constitution) and still persist with exploring the normative ideas, “which may be cherished and drawn upon for moral-political inspiration?” While at the outset, Bhargava’s nuanced, context-sensitive approach to think about the constitution sounds promising, does it convincingly resolve the problem of normativity standing-in for the historical?

Let us take the example of Dr. B R Ambedkar that Bhargava invokes as well. She queries, “Does Ambedkar’s political interest in enshrining the principle of equality and non-discrimination negate the significance of his espousing these normative principles?” As we know, Ambedkar’s articulation of the principle of equality and non-discrimination had a long history in both a personal-social and public-political struggle for several decades prior to the meeting of the constituent assembly. As such, it is difficult to equate Ambedkar’s arguments for equality with say, Jawaharlal Nehru’s or K M Munshi’s arguments for equality. This is, of course, well known. But, normatively, if we equate Ambedkar and Nehru in the same vein, clearly, we are missing out on the nuance of historical detail. The question, therefore, is how do we challenge the tendency of homogenizing normative claims when they emerge from widely disparate socio-economic and political positions, both in the imagined and real hierarchy of the socio-political world?

Bhargava also raises another interesting possibility of thinking about norms in the making of the Indian constitution. Bhargava expands the notion of normativity and suggests that normative values are articulated not only at the point of conflict between two warring parties, as it were, but also in their own self-understanding. Thus, in the historical context of constitution making, we could argue that both the Indian National Congress and the Indian Muslim League were articulating their own ideas of normative principles. Thus, in Bhargava’s reading, though this conflict did not resolve within a single state, it cannot be said that the postcolonial Indian constituent assembly had any less normative intent or substance to their deliberations. This is a good point. But the question remains, from whose point of view do we assess this normative cartography? The assessment would vary widely depending on our subject positions.

This leads me to highlight an underemphasized point about the making of the Indian constitution, which unfortunately has not been one of the central axes around which the discourses on the Indian constitution have been constructed. The framing of the Indian constitution occurs in the aftermath of a fundamental failure of constitutionalism. In other words, if the normative impetus of the constitution is to accommodate rival claims and really involves giving up entrenched positions, then that moment was available between the years 1944-47 (not to mention some of the preceding years too). This is true for the Congress, the League, and of course the princely states. Yet, all ideas of constitutionalism and constitutional imagination failed to bring about a resolution within a single state. A dual state had to be created. The making of the Indian constitution, then, historically occurs in the shadow of this fundamental failure of constitutionalism, a point, I argue, that becomes painfully visible when we seriously examine the political history of constitution making. From such a perspective, and in the aftermath of partition, accommodating the remaining minority voices and providing space for different ideologies, etc. became politically feasible. In the larger context of empire and decolonization, such an effort was strategically valuable too.


B N Rau in the Making of the Constitution

In many ways, B N Rau was not the ideal lens through which one could cohesively make the argument for a political history of the Indian constitution. Yet, I found Rau’s career and work tremendously useful because he was a key witness to the unfolding political and constitutional drama of the late colonial period. I do agree with the general reviewers’ criticism that perhaps the distinction I draw between Rau and the political leadership may be too sharp. But, I would like to suggest that there is equally a problem if we view Rau’s work as yet another example of a bureaucrat working the cogs of the imperial and later the nationalist machinery. In other words, a tendency to homogenize all the historical actors within a singular narrative in order to explain the making of the constitution will result in a loss of perspective of not only the distinctiveness of the individuals involved, but also the story we are narrating.

Let us consider here Burra’s careful reading of Rau’s work in the implementation of Government of India Act, 1935. I agree with his assessment that colonial governmental machinery was more complex than it appeared, and it is not easy to make a stark contrast between the colonial officials on the one hand and someone like Rau on the other. However, what I found interesting in Rau was his intent and ability to push the boundaries of constitutionalism when some of the colonial officials were unwilling to do so. It is hard to imagine another bureaucrat of that period who articulated ideas of constitutionalism that directly confronted and challenged the colonial government’s efforts to read down the intent of the 1935 Act. To this extent, even if we agree that Rau broadly adhered to ideas of constitutionalism as authority, then I would suggest there is sufficient space to appreciate the difference of viewpoints he had with several members of the colonial government.

But, I agree with both Burra and Kumarasingham’s call for overcoming our predisposition toward narrating nationalist histories of the constitution (in Burra’s terms, the problems of viewing constitutionalism only as a function of sovereignty). In particular, I cannot agree more with Kumarasingham when he says, National history can be done without nationalism, which those in power in India and elsewhere have long failed to comprehend.” There is much to be gained if we move away from this constrained framework. Kumarasingham calls for writing histories by focusing on other ‘less prominent’ leaders and thinkers such as Sir Alladi Krishnaswami Aiyer, Sir Girija Shankar Bajpai, and K M Munshi, among others. Indeed, uncovering their thoughts and predilections in the realm of politics, constitutionalism, and other areas would provide us a rich field to explore and discuss the many ways in which politics and constitutionalism intersect. Debates in the constituent assembly should be viewed as only one of the sources for reconstructing our understanding of the Indian constitution and I suggest the body should not be viewed in an apolitical manner. There is very little reason, in fact, to adopt that approach.


Historicizing the Indian Constitution

Can we then reliably make a case for historicizing the Indian constitution, especially in narrating its political histories? If so, how do we do it? For, after all, even Granville Austin claimed that he was writing a political history in his unforgettable book. My humble submission here is that the process of the making of the Indian constitution is so richly and dexterously entangled with the politics of the times that we would only benefit by recovering these histories of conflict (and, indeed to some extent even histories of finding common ground between opposing points of view).

Secondly, when we give political histories their due, our understanding of the constitution only becomes richer, not poorer. The tensions embedded between colonialism and constitutionalism on the one hand and nationalism and constitutionalism on the other (among other potential tensions to be explored) would provide a pluriverse of concepts, themes, ideas, and arguments that went into the making of the constitution. Political histories of the constitution can bring this to the forefront, something a strictly normative account would tend to simply push to the background. The challenge here would be to make histories speak to the norms even as the normative would attempt to speak for the historical.  

Finally, in the contemporary moment, we have witnessed people reading the preamble of the constitution on the streets. A truly remarkable moment in India’s postcolonial life, indeed. It is also true that the gesture drew upon an idea of a political appropriation of the constitution. Yet, where are the histories that would explain the genealogy of this appropriation? Norms and Politics, along with several recent works by scholars in the field (like that of Rohit De, Arudra Burra, Kanika Gauba, Anuj Bhuwania, and others), I submit is a nascent, albeit imperfect, attempt to speak to this largely unspoken but felt need in India’s politico-constitutional imagination.

Written by
Dr. Arvind Elangovan
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