[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 Gurpreet Mahajan. The introductory post and the links for the other reviews can be found here.]

Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50 by Arvind Elangovan is an ambitious book that compels us to think about constitutionalism and the constitution making process in postcolonial India. It makes three bold assertions: 1) The Constituent Assembly, “far from being a ‘neutral’ or an ‘ethical’ body formed to frame a constitution, was actually an instrument of political negotiations” [p.105, emphasis added]; 2) in drafting the Indian Constitution, “political history played a dominant role, with norms giving way to a history of politics” [p.175, emphasis added]. Hence, focus should be on political history rather than recovery of operative norms [p.213]; and 3) B.N. Rau (unlike the Congress leadership) was committed to “procedural fairness” [p.142]. These statements, which are ostensibly about the political act of framing the Indian Constitution, raise methodological and theoretical issues, and one must examine them at all these levels.

When the Constituent Assembly started its work, political divisions were very sharply articulated. Muslim League’s decision to stay away from the Assembly was a major setback, but did it render this body unethical?

The question of representation is a complex one. Muslim League did not perform well in the 1936-37 provincial elections but did remarkably well in 1946. Did this make them the ‘sole’, ‘authentic’ voice of the Muslim community? Should one treat the community as having one voice? Is that acceptable or ethical? Just as we strengthen the democratic process by bringing in group differences, the same consideration must be extended to intra-group differences. The diminished presence of the Muslim voice was a matter of deep concern and a special effort was indeed made to include more representatives and leaders from the Muslim community. One has only to read the intense debate that occurs within the Muslim representatives on the question of separate minority representation, to appreciate that differences were not effaced by the absence of the League.

Even if we accept that the Congress could not speak for everyone, nevertheless should we view it as the voice of the Hindus? Ambedkar, as well as members from the Northeast region, did not accept that description. Just who represents whom? To what extent and under what circumstances is a messy question and one might even join hands with Rousseau to say that no one can claim to represent another person. In the case of the Constituent Assembly, the effort made to include different groups and communities, not simply in terms of their presence, but to give them a voice to express their concerns in the discussion on Fundamental Rights, made the Assembly an ethical body. After all, what is ethics other than recognizing the presence of the other and arriving at norms in conversation with the other.

Normative accounts often present opinions as principled positions dissociated from political interests; they also privilege reason/norms over history. Arvind Elangovan provides a corrective by offering a detailed account of the events that preceded the working of the Constituent Assembly. The historical account is indeed important but do the preceding occurrences adequately explain what followed in the Assembly? Can we explain the Assembly’s decision to give each person the right to “profess, propagate and practice” one’s religion in those terms? Or, understand why the Governor was given discretionary powers, even though the Congress had opposed the 1935 Act on the same ground?

The point is that the relationship between what preceded and what follows is not a simple and direct one. History does matter; it forms the backdrop against which specific issues emerge, and particular justifications are offered. Reference to it can thus help us understand the different principles that were invoked by participants – such as, separation of religion from politics, primacy to the individual, value of community membership, equality of all persons, equal standing of diverse cultures and communities – and the reasons they offered for privileging a particular value. However, there was no pre-determined path. Whether it is the naming of the country (India/Bharat), the terms included in the Preamble or even the invocation of the word ‘secular’, different propositions were fiercely debated till the very end. As in any process of deliberative democracy and dialogue, a fragile consensus was achieved by different subjects moving away from their original position. Dialogue requires the willingness to accommodate, and one should be weary of seeing this as abandonment of principles.

A historical consciousness matters. We need to reflect upon the options that were available, the path that was chosen and the alternatives that were set aside, because it is through this journey that we can hope to become reflexive self-determining agents.

Turning now to the central figure in Elangovan’s historical narrative, B.N. Rau: he is said to embody wisdom and sagacity, neutrality and fairness. It is customary for civil servants to project themselves as being neutral, but why should this self-perception be accepted? Why is Rau’s  plea for equal representation for each province neutral but representation in proportion to the size of the population, political? Similarly, why is Rau’s push to accept and work within the framework proposed by the 1935 Act neutral, but Congress’ refusal to accept the powers given to the Governor, political? Like the Kantian dualism between ethics and prudence, history and norms, this distinction between neutral and political remains problematic.

Lingering through the book is the lament that B.N. Rau’s suggestions were not accepted by the Constituent Assembly, on account of political rather than normative considerations. We learn that Rau was a champion of minority rights, who gave priority to non-justiciable Directive Principles over individual rights, favoured a strong federal arrangement with the chief executive being more than a titular head. Some of these propositions were not accepted but was this on grounds of politics rather than ‘good reasons’. Would the minorities be better protected by non-justiciable Directive Principles? In a context where the cultural majority could easily become a political majority, was it advisable to limit judicial intervention and place one’s “faith” in the legislature?  Can the legislature be relied upon to act in “general welfare”. Would a system of individual rights not be a necessary condition in realizing the latter? Against the backdrop of India’s political history, these were surely ‘good reasons’ for not siding with Rau’s proposals.

Lastly, a more general concern: postcolonial writing has successfully made the voices, experiences and political thinking of the erstwhile ‘periphery’ relevant for global discussions and theorisation. This is a huge achievement but structures of dominance are, it seems, hard to overcome and they resurface in new ways. In this book, considerable space is given to political events that occurred in the years preceding independence, but there is no reference to the volumes that have been written in India around Transfer of Power. Cambridge school finds space but not its Indian counterpart. Hobbes’ Leviathan too had no references, but as Quentin Skinner reminds us, cross referencing was not an accepted practice at that time. However, it is now. Absences of this kind therefore stick out and compel us to think if we are ourselves complicit in creating and sustaining structures of dominance.