The Constitution of India marked a moment of profound transformation—a moment when a people transitioned from colonial subjects to citizens of a free nation, but this book goes deeper than simply that. By leading the reader through nine important cases – seven decades’ worth of jurisprudence, Gautam Bhatia demonstrates that the Constitution was committed to a political and social reconstruction of the State. His argues for one to recognise the original tranformative vision that guided its making.
His re-reading of this document in The Transformative Constitution is faithful to its text, structure, and history. The book shows the way for a reader to claim the trinity of equality, fraternity, and liberty that is enshrined within the Constitution. The following excerpts are taken from the prologue “The Past is a Foreign Country” of the book.
” … it is important to differentiate the nationalist movement from the framing of the Constitution. The framing was the culmination of the nationalist movement, inspired by its values, and had many of the same protagonists. That does not mean, however, that the two were equivalent.1 Instead, I shall argue, there were discourses around liberty, equality, and fraternity which were part of the freedom struggle but were ignored, marginalized, or even rejected by the dominant nationalist movement. Nonetheless, they found their way into the Indian Constitution, and gave it its transformative character.
To understand and incorporate them into our constitutional vision, however, will require an act of imagination. We need to go beyond the narrow canon that is invoked in defence of constitutional continuity, a canon that is limited to a surface reading of the constitutional text, a surface comparison with colonial legal instruments, and a surface contextualization of the pre- and post-constitutional political framework.
The Transformative Constitution
The litany of arguments advanced by the defenders of colonial continuity are not definitive. The Constituent Assembly might have owed its legal existence to the colonial regime, but one of its first acts was to declare itself sovereign, and frame the Constitution on its own terms2 In defending himself against the charge that he had simply copied the 1935 Act into the Constitution, Babasaheb Ambedkar, the principal draftsman of the Indian Constitution, insisted that it was only the ‘details of administration’ that had been borrowed.3 This was not an unfair argument.4 And while some measure of ‘responsible government’ existed in British India, it was scarcely comparable with the full-blooded parliamentary democracy, founded on universal adult franchise and equality of citizenship, which the Constitution brought into existence.5 As Uday Mehta points out, for all the surface similarities with the colonial past, there was much in the Constitution that was a radical departure:
Here was a document which granted universal adult franchise in a country that was overwhelmingly illiterate; where, moreover, the conditionality of acquiring citizenship made no reference to race, caste, religion, or creed … which committed the state to being secular in a land that was by any reckoning deeply religious; which evacuated as a matter of law every form of prescribed social hierarchy under extant conditions marked by a dense plethora of entrenched hierarchies; that granted a raft of fundamental individual rights in the face of a virtually total absence of such rights … [and] most importantly, the Constitution created a federal democracy with all the juridical and political instruments of individual, federal, local, and provisional self-governance, where the nearest experience had been of imperial and princely authority.6
These words lay the foundations for the argument of this book: that the Indian Constitution was a transformative constitution.7 But what did it seek to transform? To answer this question, I begin with Ruti Teitel’s important insight: ‘As a state undergoes political change, legacies of injustice have a bearing on what is deemed transformative.’8 I shall argue that there were two clear ‘legacies of injustice’ that the Constitution sought to repudiate and transform.
First, the Constitution transformed the legal relationship between the individual and the State. It transformed the subjects of a colonial regime into citizens of a republic. It replaced the colonial logic of governing and administering a population 9 with the democratic logic of popular sovereignty, public participation, and limited government. Apart from the guarantee of universal adult franchise and the structures of parliamentary democracy, this transformation was expressed through the fundamental rights that embodied citizenship and made democracy possible: the freedom of speech, expression, association, and conscience; the right to life and personal liberty; and the right to equality before law10 These fundamental rights, alien to the 1935 Government of India Act, represented ‘a tectonic shift in constitutional philosophy’.11
So far, so familiar. This is the story of constitution-making the world over, most famously told through the American Revolution. Yet, that was not all. The Indian Constitution was transformative in a second sense. It sought a thoroughgoing ‘reconstruction of State and society itself ’.12 In its horizontal—or comprehensive— transformative avatar, the Constitution recognized that the State had never been the only locus of concentrated power in Indian society. Unlike the modern West, which understood sovereignty in centralized and unitary terms, Indian society had always been characterised by ‘layered sovereignty’.13 Hierarchies were established and maintained by ‘self-regulating communities’ taking multifarious forms (primarily, caste), and the State had ‘rather limited powers to interfere with [a] social segment’s internal organisation’.14
Consequently, in India, freedom and equality were suffocated not merely by ‘a despotic government, but also by embodied traditional authority and … domestic or religious practices’.15 The freedom struggle that culminated in the framing of the Constitution was at one end a movement for liberation from political servitude, but it was equally ‘a struggle for self-determination against multi-layered oppressive structures’ of the feudal order as well as the structures that constituted colonial domination.16 This story is reflected in the Constitution’s horizontal rights provisions (i.e., fundamental rights enforceable against groups, communities and private parties), a rarity in constitutions even today, let alone in 1950: Article 15(2), which bans discrimination in access to restaurants and roads, Article 17, which abolishes untouchability, and Article 23, which proscribes forced labour.
To defend this vision of the transformative Constitution, it is imperative to go beyond the sterile and deadlocked academic debates surrounding the bare text of the document, and (some of) the legal instruments that preceded it. The words of the Constitution, I suggest, come alive only in the context of a broader canon. For example, we cannot understand the constitutional guarantee of equal protection of laws without taking into account the ‘enormously influential’17 Samya (Equality) (1879), Bankim Chandra Chattopadhyay’s nineteenth-century political treatise on equality. We cannot understand the Constitution’s repudiation of gender discrimination without listening to the voices of the women who used the language of equal rights to publicly intervene in the nineteenth-century debates surrounding the restitution of conjugal rights, the twentieth-century controversies over the Child Marriage Bill, and the equally public struggle of the suffrage movement. It is only when we read the speeches of Congress presidents Motilal Nehru and C.R. Das, savaging the colonial regime’s arbitrary executive authority, that the austere right to ‘life and personal liberty’ will begin to speak to us. It is the writings of B.R. Ambedkar, from his Report to the Southborough Committee to Annihilation of Caste and the story of the Mahad Satyagraha, that will allow us to understand how the Constitution was committed to erasing social and economic hierarchies. And it is Gandhi’s uncompromising approach to civil rights and his defence of all speech—even ‘revolutionary speech’— that will enable us to understand the transformative potential in the simple words: ‘all citizens shall have the right to freedom of speech and expression’.18
That is just the beginning. For more than a hundred years, in their struggle against alien colonial rule and against indigenous social and economic domination, Indians imagined, conceptualized, and articulated a vocabulary of rights, of equality and freedom, and of dignity, a vocabulary rooted in the lifeworld of India. We do that struggle a disservice if we erase it from our consideration when interpreting the charter of fundamental rights that, finally, constituted an independent India.
In particular, it was a struggle that found utterance in the curtainraiser to the Constitution: the Preamble, with its three words which, over the course of almost two centuries, had acquired the force of an incantation: liberty, equality, fraternity.19
1. See, for example, Nehru’s speech introducing the Objectives Resolution. The Framing of India’s Constitution: Select Documents 4–11 (B. Shiva Rao ed., Gurgaon: Universal Law Publishing 1967).
2. See, for example, Nehru’s speech introducing the Objectives Resolution. The Framing of India’s Constitution: Select Documents 4–11 (B. Shiva Rao ed., Gurgaon: Universal Law Publishing 1967).
3.Parliament of India, Constituent Assembly Debates, Vol. VII, 4 November 1948 (Speech of Dr B.R. Ambedkar), available at http://220.127.116.11/LssNew/cadebatefiles/C04111948.pdf, visited on 25 May 2018. See also Uday Mehta, ‘Indian Constitutionalism’ in The Oxford Handbook of the Indian Constitution, supra, 38, 48: (‘… the dominant temper of mind in the assembly was revolutionary’; and Hanna Lerner, ‘The Indian Founding’, ibid., 54, 58.
4 For the limited and constrained nature of the 1935 Government of India Act, see Arvind Elangovan, ‘Provincial Autonomy, Sir Benegal Narsing Rau, and an Improbable Imagination of Constitutionalism in India, 1935–38’, (2016) 36(1) Comparative Studies of South Asia, Africa and the Middle East 66; see also Andrew Muldoon, Empire, Politics, and the Creation of the 1935 India Act: Last Act of the Raj (Farnham: Ashgate 2009).
5. In the speech cited above, as Dr Sitaramayya pointed out, ‘We have extended the franchise which gave us three and a half crores of voters at the time when the British left this country, to seventeen crores of voters who will adorn the electoral rolls immediately next year.’ Parliament of India, Constituent Assembly Debates, supra. A five-fold increase in the franchise is probably more of a transformative change than an ‘extension’ of the franchise. See also, Ornit Shani, How India Became Democratic (New Delhi: Penguin 2018).
6. Uday S. Mehta, ‘Constitutionalism’, supra, 20.
7. The term ‘transformative constitutionalism’ is borrowed from South African scholarship. While I place myself firmly in the tradition of constitutional scholarship that began with Karl Klare’s famous article, ‘Legal Culture and Transformative Constitutionalism’, (1998) 14 South African Journal on Human Rights 146 (1998), my exploration of the concept will not necessarily subscribe to all the valences that it has acquired in South Africa. The articulation of transformative constitutionalism in this book, in its focus on constitutionalism’s impact on ‘institutional life and social practice’, also owes a debt to the founding texts of the US critical legal studies movement. See, e.g., Roberto Unger, The Critical Legal Studies Movement 53 (Cambridge: Harvard University Press 1983); and especially Robin West, ‘Progressive and Conservative Constitutionalism’, (1989–1990) 88 Michigan Law Review 641.
8. Teitel, ‘Transitional Jurisprudence’, supra, 2014. As Terry Eagleton interpreted Walter Benjamin, ‘what drives men and women to revolt against injustice is not the dream of liberated grandchildren, but memories of enslaved ancestors’. Terry Eagleton, ‘Walking the Dead’, The New Statesman, 12 November 2009, available at https://www.newstatesman.com/ideas/2009/11/past-benjamin-future-obama. Justice Albie Sachs put a more poetic gloss upon the same sentiment: the purpose of a Constitution is to transform ‘misfortune to be endured into injustice to be remedied’. Volks v. Robinson, 2005 (5) BCLR 446, ¶222 (Constitutional Court of South Africa) (dissenting opinion of Justice Sachs).
9. And, as in the case of the great legal codification projects, of experimenting upon them. See, e.g., Elizabeth Kolsky, ‘Codification and the Rule of Colonial Difference’ (2005) 23(3) Law and History Review 631.
10. For an understanding of how these individual rights exist in a ‘co-equal’ relationship with democratic participation, see Jurgen Habermas, Between Facts and Norms (Cambridge: MIT Press 1996). For recent monographs highlighting the place of rights in the Indian constitutional scheme, see Madhav Khosla, The Indian Constitution: A Short Introduction (New Delhi: OUP 2012); Arun Thiruvengadam, The Constitution of India: A Contextual Analysis (New Delhi: Hart Publishing India 2017).
11.Ananth Padmanabhan, ‘Rights’ in The Oxford Handbook of the Indian Constitution, supra, 581, 582.
12. Cathi Albertyn and Beth Goldblatt, ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 South African Journal on Human Rights 248, 249; Dikgang Moseneke, ‘Transformative Adjudication: The Fourth Bram Fischer Memorial Lecture’ (2002) 18 South African Journal on Human Rights 309.
13. See e.g., Nick Dirks, Castes of Mind: Colonialism and the Making of Modern India (New Jersey: Princeton University Press 2001); Sudipta Kaviraj, Trajectories of the Indian State: Politics and Ideas (Ranikhet: Permanent Black 2010); Radhika Singha, A Despotism of Law (New Delhi: OUP 1998), and the work of Christopher Bayly; Mark Juergensmeyer, Religious Rebels in the Punjab: The Ad Dharm Challenge to Caste 143 (New Delhi: Navayana 2009), noting the absence of centralized authority and the prevalence of political competition between different groupings; see also, Partha Chatterjee, describing the thought of Rabindranath Tagore—‘the laws of the state had limited jurisdiction and were subordinated to the rules of right conduct prescribed by community practices’—in ‘Nationalism, Internationalism, and Cosmopolitanism: Some Observations from Modern Indian History’, (2016) 36(2) Comparative Studies of South Asia, Africa and the Middle East 320, 331.
14. Sudipta Kaviraj, The Imaginary Institution of India 12 (Ranikhet: Permanent Black 2010).
15. Christopher Bayly, Recovering Liberties: Indian Thought in the Age of Liberalism and Empire 35–36 (Cambridge: Cambridge University Press 2011).
16 Anupama Roy, Gendered Citizenship: Historical and Conceptual Explorations ix (Revised ed., Hyderabad: Orient BlackSwan 2013).
17. Sudipta Kaviraj, ‘Ideas of Freedom in Modern India’ in The Idea of Freedom in Asia and Africa 97, 108 (Stanford: Stanford University Press 2002).
18. Article 19(1)(a), Constitution of India. While Gandhi’s own vision of a decentralized India founded upon independent village-republics was never seriously considered by the Constituent Assembly, his impact upon the thinking of the Congress Party that he led for three decades—and which constituted a bulk of the Assembly—cannot be underestimated. Gandhi’s public commitment to the freedom of speech and association as foundational values of the new order is evident from his speech at his sedition trial, his address at the 36th Congress Session in 1921, and from his writings in Young India. See, e.g., B. Pattabhi Sitaramayya, The History of the Congress 380 (Madras: Law Printing House 1935).
19. These three words, of course, bring with them two centuries of contestation, and are not in themselves determinative of a transformative purpose. It is how a particular Constitution chooses to understand them that determines whether, and to what extent, it is transformative.