The people were conspicuous by their absence in the Assembly. There was no direct election to select the members, nor any protracted public debates on the nature of the Constitution.

[Excerpts from ‘Indian Democracy: Origins, Trajectories, Contestations’ first published on Scroll.in]

The Indian Constitution did not stem from a revolution but envisioned one. So why didn’t it happen?

There is a problem that any aspiring scholar of the Indian Constitution must face, but which remains, more often than not, unacknowledged. In the voluminous literature narrating the triumph of the Indian people against the mighty British Empire there exists a curious absence: the word “revolution”.

One frequently comes across the phrases “independence movement” or “freedom struggle”. Yet “revolution” – a term oft-used in the modern political vocabulary to describe an epochal shift in the life of a polity – is conspicuous by its absence from the historical consciousness of Indians when they talk about the end of two centuries of colonial domination and the birth of the world’s largest democracy. Whatever terms the new postcolonial political actors chose to describe themselves, “revolutionaries” was rarely one of them. Perhaps the most paradigmatic case of twentieth century decolonisation left behind no “memory” or “spirit” of the revolution.  …

Following one of the largest mass struggles in history, India achieved its independence without a revolutionary rupture. This is not a simple reiteration of the oft-repeated point about colonial continuity. Rather, it is to highlight a certain mindset that prevailed among the constitution makers.

They were not meeting as the representatives of a victorious party of a revolution or different factions of a civil war, or even participants in a negotiated settlement. At the beginning of the Constituent Assembly, Nehru invoked the Tennis Court Oath promulgated by the members of the French Third Estate in 1789. Whereas the French revolutionaries resolved to draft a constitution regardless of whether it received the blessing of legality from the existing monarchical order, the Indian constitution makers worked under the untroubled shadow of legal authority bestowed by an Act of the British Parliament.

Consequently, they never had to draw upon claims of revolutionary or extra-legal legitimacy. Neither were they directly elected by the “People” to write a constitution in their name.

When their lack of representativeness was pointed out, BR Ambedkar – Dalit leader and chairman of the Constituent Assembly – would argue that their legitimacy was based on the “wisdom and knowledge” they brought, which were most likely superior to any representatives chosen on the basis of universal franchise.

Many of them alternated as members of interim government, and government departments sent detailed notes on possible constitutional provisions.

Congress had been the government-in-waiting for around a decade by this point. The concerns of governance were no longer fully separated from the project of creating a constitutional structure. Theirs was a project of governance, of which drafting the Constitution was the first, most significant, step. The constituent and the administrative standpoint were never fully distinct.

The Constitution recognised “We, the People” as its author and creator. In 1937, Nehru had said, “[t]he Constituent assembly that we demand will come into being only as the expression of the will and the strength of the Indian people; it will function when it has sanctions behind it to give effect to its decisions without reference to outside authority. It will represent the sovereignty of the Indian people and will meet as the arbiter of our destiny.”

Yet the people were conspicuous by their absence in the Assembly.

There was no direct election to select the members, nor any protracted public debates on the nature of the Constitution. There were no Federalist Papers, no referendum campaigns, no participatory forums.

Unlike the French or Mexican constituent assemblies, the proceedings were never disrupted by petitioning groups of citizens. Instead, the people were present in the Assembly in another guise: as a population and as subjects to be made into citizens. They were the inhabitants of a society to be modernised; actors in an economy to be developed. They were conceived of as the protagonists of a democracy to come and instability to be avoided. They were the “starving people” and “naked masses” – and it was the “first task” of the Assembly to see to it that they were clothed and fed.

The Constituent Assembly had come into being through a long struggle, but without a revolutionary disruption. Unlike the American founders, who spoke of being faithful to the “late revolution”, Indian constitution-makers spoke of revolution in the Assembly – and they spoke of it often – as a future occurrence. In their own minds, they found themselves not at the end, but on the “eve of revolutionary changes”.

The challenge for them was how to carry out a revolution (through the Constitution) to avoid a revolution (on the ground). Or, to see it from another angle, how to transpose (the threat of ) a revolution into a controlled and procedurally guided transformation – “a peaceful transference of society” as a member put it in the Constituent Assembly. Looking back on the work done by the Assembly, Nehru would later remark: “People seem to think of revolution as a big war, or a big internal struggle, violent struggle. Rather, revolution is something which changes the structure of the society, the lives of the people, the way they live and the way they work. That is what is happening in India.” It had to be a revolution without a revolution. And the Assembly had to build the architecture for it.

This was the architecture of an ambitious social transformation through the Constitution. Ambedkar’s much quoted speech at the concluding sessions of the Assembly provides the outline of this project. “If we wish to maintain democracy not merely in form, but also in fact, what must we do?” Ambedkar asked.

The…thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy…On the 26th of January 1950 [the day the Constitution was to be adopted] we are going to enter into a life of contradictions. ..

Ambedkar’s speech captures the central themes of the constitutional project. There is the acknowledgement that the social basis for “political democracy” in India is fragile and unstable. …

He reminded the Assembly that there remained a “contradiction” because the social revolution had not yet taken place, the principles of which the Constitution could then embody.

“We must remove this contradiction” through the Constitution, Ambedkar argued. The Constitution was not the triumphant coda for a revolution accomplished, but the anxious, uncertain beginning of realising one in a gradual, controlled and deliberate fashion, a process that must begin, according to Ambedkar, “at the earliest possible moment”. Otherwise the Constitution, the architecture of power for the new regime that the Assembly has so “laboriously built up”, might be “blown up”. Orderly transformation would give way to insurgency.

During the debates on the draft constitution, certain members wondered whether the drafters had followed the established formal conventions of constitutions past too closely. Ambedkar responded: “One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than hundred years have rolled over since the first written Constitution was drafted. […] What the scope of a Constitution should be has long been settled. Similarly, what are the fundamentals of a Constitution are recognised all over the world. Given these facts, all Constitutions in their main provisions must look similar.”

Yet he clarified that the drafting committee cannot be charged with a “blind and slavish imitation”. There had been “variations made to remove the faults [of the established constitutional form] and to accommodate it to the needs of the country”.

The “needs of this country”, as we have seen, was to realise a gradual and controlled transformation of the society. But that had to be realised within a constitutional form, which, as Ambedkar reminded the Assembly, had its own history, logic and formal conventions. At the same time, the demands of a transformational constitution – the fact that the Assembly, as one member put it, was “conducting a revolution” – meant that “variations” were called for. The crucial question – the crux of formulating the transformational constitutional vision – was to what extent those “variations” could be made while remaining within the formal constraints of a constitution.

Describing the central challenge of this constitutional project, Nehru had reminded his Congress colleagues that “we have bigger decisions to take, graver choices before us, than those of lawyers’ making”. Now some of the most well-known legal and administrative minds in the Assembly had to author a script for a revolutionary transformation – incorporating those “grave choices” – in a specifically juridical language. …

 

From Indian Democracy: Origins, Trajectories, Contestations, edited by Alf Gunvald Nilsen, Kenneth Bo Nielsen and Anand Vaidya, Pluto Books.

This book excerpt was first published on Scroll.in on 9 April 2019