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The Oxford Handbook of the Indian Constitution edited by Choudhry, Sujit; Khosla, Madhav; Mehta, Pratap Bhanu (1st March 2016)

Part I History, Ch.3 Indian Constitutionalism: crisis, unity, and history

Uday S Mehta

From: The Oxford Handbook of the Indian Constitution

Edited By: Sujit Choudhry, Madhav Khosla, Pratap Bhanu Mehta

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 07 December 2019

(p. 38) Chapter 3  Indian Constitutionalism

crisis, unity, and history

. . . neither morals, nor riches, nor discipline of armies, nor all these together will do without a constitution.

John Adams1

India is bound to be sovereign, it is bound to be independent, and it is bound to be a republic.

Jawaharlal Nehru2

I.  Introduction

Modern democratic constitutions are the form, or more precisely, the prior shape, the stipulated mould, to which political power, and its various structures, have to conform. Constitutional founding moments express that inescapable circularity in which they are authorised by the people, but which, by the structures that constitutions put in place, reconstitute the people as subjects. Constitutions identify people as the ultimate source of power, and yet they also transfer that power; simultaneously making them subjects of power and limiting the way in which people can participate in its exercise. In the process they often express a deep implicit distrust of people, while also giving them a collective identity and a sense of agency. Constitutions give to modern politics its supervening identity, and in turn they circumscribe what would count as legitimate forms of political and collective behaviour. They supply the distinctive structure, order, and boundaries, and in particular the specific mode by which power expresses itself. But they also designate (p. 39) other forms of existence as illegitimate, improper, and extra-constitutional. In this sense, they ostracise by marking out the boundaries between constitutional form and the social remnants that exceed it. Because constitutions have acquired the legitimacy of being an almost mandatory form of collective self-expression, it is difficult to recover a sense of the plenitude from which they assumed this singular standing. It is especially difficult to recover a sense in which collective identity was not, or need not be, associated with the constitutionalising of power.

This chapter considers from a rather abstract standpoint the background conditions, understood mainly as ideas, which informed the Indian Constituent Assembly (1946–49) as it reflected on the future identity of the country and the role of the Constitution in forging that identity. Such a perspective, given its abstractness and focus on ideas, requires justification because, in a familiar rendering, constitutions, including the Indian one, are identified with concrete events that are contextually saturated. They are typically taken to be the product of a historical process, rich with decisive events, forceful personalities, collective struggles, and constitutional antecedents. All of this is true of the Indian case, where the nationalist movement, legislative documents like the 1935 Government of India Act, the Cabinet Mission Statement of 1946, along with towering personalities like Ambedkar and Nehru, decisively shaped the content of the final Constitution. As living documents, constitutions, perhaps more than any other instrument of the State, are in a constant process of producing their own ongoing textual references, closely associated with other constitutional and legislative antecedents. My focus, instead, is on broad ideas such as the pressing urgency of political identity, the basic centrality of unity, the reliance on the professed permanence of crisis, and the role of the social, and the idea of the future. All these ideas, in my view, had a defining significance for the Constitution and the vision of country it put in place. Yet one might understandably argue, especially in light of issues such as fundamental rights, the directive principles, separation of powers, federalism, or more broadly, the specifics of institutional design—which are the pointed concern of the text of the Constitution, and which now have a rich history of case law and legislative intent—that the perspective offered here hovers too far above the text of the Constitution and the relevant context. This may be true. My justification for my orientation relies on two considerations. First, the study of the Indian Constitution in terms of its constitutional antecedents, the evolution of doctrine, its relationship to political and legislative context, and the analysis of case law has already been done by expert scholars such as Granville Austin, HM Seervai, and many others.3 The fact that such a field of study is now clearly demarcated speaks of its self-assurance, which in turn allows reflection on the Constitution to cordon itself off from the broader intellectual tradition of which it was once an emergent part. Self-confidence often expresses itself in self-enclosure and self-reference. This relates to the second reason I offer for my orientation. Despite the truly impressive and growing self-assurance of this body of literature, there has been a relative neglect of ideas, often of a distant provenance, which in many ways were the philosophical reservoir that nourished constitutional thought. The evidence of this influence on the (p. 40) Constitution is often obscured. It hides in many ways in the binding of the text. These ideas often belong to a moment when the very distinctiveness between philosophical, religious, political, and constitutional thought was deeply embattled and entangled, and where each was subject to the other’s distinct and shared urgencies. In focusing on these ideas, I hope to present not just the logic that is internal to them, but also to point to the way in which they opened and delimited the constitutional vision of India during the process of its initial and self-conscious articulation.

II.  Constitutional Imperatives

Every constitution has a complex and distinctive provenance. Each is the product of specific struggles, opportunities, and social contexts. These conditions mark constitutions, as they would any event that emerges from the rich vortex of history. But, in another sense, constitutions, at least modern ones, respond to imperatives, which though they have a history—in this case a modern history—in a crucial manner also transcend the logic of historical causation. These imperatives are embedded in narratives of destruction and creation, of generating power and constraining its exercise, of creating unity out of plurality and limiting plurality in the name of unity. They function as though they were natural conditions, which impose an almost primal necessity on constitutions: a necessity which is putatively not driven by the logic of history, but by a meta historical narrative that refers to a broader set of conditions that are deemed to underlie it—conditions that have assumed an almost metaphysical status. The imperatives refer to existential conditions, which occasion a distinctly political response; not merely in the familiar sense in which politics answers to the vagaries of extant conditions, but in a more architectonic and mythic sense in which it professes to redress a predicament that traverses all conditions.

It is commonplace to think of constitutions as seeking to establish fundamental norms of justice, legality, and the forms and offices of governance. This is, of course, true. In its original articulation the idea comes from Aristotle.4 Alexander Hamilton, in expressing the first axiom of modern constitutions, famously declaimed that they were a mechanism to ensure that ‘the streams of national power ought to flow immediately from that pure original fountain of all legitimate authority’, namely the consent of the people.5 At one level, constitutions are literally the articulation of a plan that establishes the major political institutions of a society: parliament, the executive, the judicial framework, the superior law that constrains ordinary law, the mode and extent of judicial review, the manner in which power is apportioned in different branches of government, the stipulations of the franchise, the rights that citizens have and with respect to whom they may be exercised, along with a variety of other norms that make up the political template of the state. In this sense, (p. 41) constitutions are rightly thought of as ‘the rules of the game’ that give expression to a vision of a society in the process of its coming into being.6

But this familiar rendering of what constitutions are and do misses a narrative consensus that precedes the framing of constitutions, and which constitutions, as it were, merely reflect. It is a consensus about the State and its identity, and about a specifically political redress to a modern predicament.7 At the risk of some exaggeration, one might say that European constitutional history since the seventeenth century was articulated around the nuances of this consensus, which was forged on the wreckage of theological disputes and a displacement of inner convictions, along with a vision of social evisceration that could no longer hold society together, and the corresponding and singular redress offered by the power of the State and the unity of the nation. It is this consensus that stands behind and motivates much of modern constitutionalism. One should not be surprised by these distant influences. History almost always yields more than its starting point.

Understanding the imperatives that drive modern constitutionalism is important because they make clear that notwithstanding the epic sense in which constitutions are associated with an act of a people’s sovereign choice, in other ways they are the products of a prevenient logic and destiny in which what is chosen is already, as it were, substantially given. The epic and the sovereign are thus also acts of ritual repetition, where a professed break with history also enfolds it into a pre-existing narrative of necessity. It is perhaps a banal and self-evident feature of that narrative, but one that bears repeating, especially in a context where typically there are other claims to authority, namely that constitutions put into place principles that are structured around the idea of ruling and being ruled.

The stakes of this recursive process were more pronounced in post-colonial societies that came to political self-consciousness in the latter part of the twentieth century. Notwithstanding the idealism of the nationalist struggle, the conclusion of that process was invariably constrained by a preformed and limited template of possible identities. In expressing their grievances against empires, the formerly subject societies had stridently vouched for their own difference and their own glowing nationhood hallowed in distinct hues in a crowded field of extant social norms and practices. But in articulating themselves as political entities, a task specific to constitutionalism and nationalism, they were perforce destined to affirm their existence through acts of sovereign repetition; in a borrowed vocabulary with its own distinctive and implicit traumas and its own reliance on a tool box of familiar concepts in which, to recall Hamilton, the power of the state was the principal font and purpose.

Post-colonial constitutionalism, in many ways, emerges from this dual and awkward pressure of, on the one hand, having to give expression to a distinctive national emotion; and on the other, discovering that the familiar form of constitutionalism is already alloyed to an ancient imperative script, of distant sectarian battles, which were linked in terms of (p. 42) redress with a particular conception of power and its relation to the nation. Hence in its political articulation the nation, almost unwittingly, finds itself to be a ‘fragment’ of a larger discursive constellation with a prescribed political destiny.8 The fact that the first three words of the American and the Indian Constitutions are the same only hints at the deeper sense in which the former serves as one of the templates for the latter, not least by making both constitutions the product of ‘the people’s’ collective action. The Constitution prescribes for the nation its primary mode of existence, and in doing so folds it into a narrative in which its distinctiveness is qualified, not least because its many untidy edges are fit into a stipulated mould. It bears repetition that the project of the nation, which notwithstanding the euphoria of ‘Independence’, in many ways was to constitute a ‘we, the people’, under conditions where that national identity was still deeply contested, is for the Constitution, already taken as a settled fact. In the case of the Indian constitutional founding this was doubly the case. Not only was the Constituent Assembly authorised by an existing government, the interim government, along with the Cabinet Mission statement of May 1946, but also the deliberations on the future Constitution were significantly constrained by the Government of India Act of 1935.9 Nehru’s declamation at the head of this chapter conveys a sense in which that destiny was chosen, but also already prescribed. There are implicit in this settlement the meanings of other important terms such as power, authority, consent, rights, and federalism. Yet the dialectic of the contestation regarding a national identity and a constitutional vision in which it is a fact is never ultimately stable or fully settled. It permeates everyday life, if nothing else as a reminder that even the imperatives that wrap themselves in the garb of meta-historical necessity are not immune from an essential experimentalism that marks history and public life.

III.  A Narrative of Crisis and Anarchy

The most salient and, in many ways, determinative existential contention that informs constitutional founding moments is that the extant conditions of a society are deemed to be deeply disturbed by an intractable crisis, which renders society anarchical and exposes human life to severe exigencies, and at the limit, to unnatural forms of suffering and death. In its constitutional significance, the contention is not really dependent on a historical claim about the present actually being marked by anarchy, even though most often a factual claim is made to buttress the philosophical argument.10 The claims of anarchy and acute disorder function as meta-historical postulates that put into motion a series of implications. The importance of (p. 43) this foundational contention and its status for constitutionalism lies in that it points to a gap that needs to be filled, and the untenability of the extant framework of society as offering the appropriate binding material to fill the gap. This thus motivates, with pressing urgency, the need for a State and its cognate, the citizen. In its most powerful and elaborate philosophical articulation the idea is, of course, associated with Thomas Hobbes, who famously deployed the fact, and even more consequentially, the idea, of civil war and anarchy as the generative postulate of modern politics and the rationale of the modern unified State. It was civil war and its anarchical implications, along with the impossibility of its resolution in religious terms that had motivated it, that necessitated a new idiom of power, which displaced the language of conscience (the inner realm) with one whose mandate was the peace and security of the outer body, of both the individual and of the unified State. Hobbes was substantially indifferent to the content of the religious beliefs that had spurred the English Civil War. What was essential was their displacement as the grounds for public obedience. What mattered in terms of the structure of the State was the status of being a citizen, and one could only be a citizen by being the subject of a sovereign. Hobbes was similarly less concerned with the specific substance of laws; rather, in serving as warrants for peace they had to express the will of a sovereign power. One of Hobbes’s many enduring contributions to the broad logic of constitutionalism is in having made the State reliant, at least implicitly, on a narrative of anarchy and civil war. Many constitutions, including the Indian one, in their founding self-conceptions paid deep homage to this narrative and philosophical resource.

The invocation of crisis, strife, impending disunity, sectarian divisions, and the prospect of mayhem are ubiquitous in the reflections of the Indian Constituent Assembly Debates that precede the Constitution. The British imperial authorities had themselves for long grounded the legitimacy of their rule as the sole basis for avoiding chaos and mitigating the sectarian crisis which would result from their departure.11 Especially in the early speeches of the Constituent Assembly, where a broader context is being imagined, the invocation of crisis constitutes a haunting background to the deliberations. A few examples make this clear. They are meant to capture the ambient mood of the deliberations and a conceptual orientation—one that is closely linked to the constitutional vision and the urgencies that motivate that vision. Rajendra Prasad, for example, speaks of the context as recalling other such assemblies; it is, as he says, a context of ‘ … strife and bloodshed … conducted amidst quarrels and fights’.12 Nehru, in one of his early perorations, refers to the freedom struggle as the ‘valley of the shadow’: ‘we have gone through [it] … We are used to it and if necessity arises we shall go through it again.’13 Purushottam Das Tandon, while referring to separate electorates, recalls the bloody American Civil War and accuses the British of having created the ‘ … possibility of civil war in our country … ’ and again ‘it is quite possible that civil war may occur …’14 Sri Krishna Sinha speaks of strife and the spirit of rebellion as making possible and underlying the very existence of the Constituent Assembly.15 In much the same (p. 44) spirit, MR Jayakar says ‘ … frankly there is danger ahead, danger of frustration, danger of discord and division …’16 Ambedkar recalls and quotes from Burke’s famous speech On Conciliation with America precisely because he thinks that the situations in the two assemblies, Britain in the late eighteenth century and India in the context of the Constituent Assembly, are analogous. They are both riven by the belief in the expedience force, but Ambedkar, quoting Burke, continues, ‘ … the use of force alone is but temporary. It may subdue for a moment; but it does not remove the necessity of subduing again; and a nation is not governed, which is perpetually to be conquered.’17 Finally, returning to Rajendra Prasad from a later point in the debates, we may note his description of the extant context of India as being one in which ‘there is a fissiparous tendency arising out of various elements in our life. We have communal differences, caste differences, language difference, provincial differences and so forth.’18

The background to these apprehensions about civil war and anarchy is a concern with the Muslim question, issues of caste, and pervasive inequality and destitution—hence broadly the social question. Following Independence and especially following the outbreak of hostilities in 1948, there was the additional and recurrent, and as it turned out the semi-permanent, invocation of the threat of war with Pakistan. In their combined effect they produced a generalised anxiety, not altogether dissimilar to Hobbes’ assessment of England in the mid-seventeenth century. It was a picture of a society fraught with the danger of subjective enthusiasms, religious difference, and social and economic divisions. The collective image it produces is of a society in which unity had to be crafted through a new settlement. It is, of course, undeniable that the entire period of the Constituent Assembly, and the early years of the republic, were shadowed by real crises, especially after the failure of the Cabinet Mission, the outrageous expediency of Mountbatten’s plans for the transfer of power, the refusal of the Muslim League’s representatives to join the deliberations, the horror of partition, and the assassination of Mahatma Gandhi. The concern with war, the prospect of disunity, the anguishing worries about social and other forms of destitution typically mark the birth of nations and so it is not surprising that they should be forcefully expressed. Still, it is not these facts alone that adequately capture the importance of this recurrent trope in the Constituent Assembly debates and elsewhere. The facts, while true, are, after all, selective.19

The idea of crisis is also implicit in another resonant aspect of constitutional founding moments. They typically feature sharp contrasts in much the way Hobbes had starkly distinguished the commonwealth through the morbid imagery with which he described the state of nature. Here words often need the support of images. In the founding of constitutions this is conspicuously the case. They are often spoken as constituting a drama and they typically rely on dramatic images and metaphors to service their monumental purposes. (p. 45) They are conceived and projected through the iconography of darkness and light, night and dawn, past and future, subjugation and rebirth, chaos and order, and despair and hope. These metaphors extend across contexts that include those marked by an obvious revolution and widespread social upheaval, such as the French Revolution, to those where the constitutional founding occurred in a settled field of extant practice, such as in the Indian case. The fact that this stylised vocabulary and iconography, ritualised and, despite being burdened by clichéd overuse, has serviced such a vast range of examples, provokes an obvious question: what spurs such disparate moments to be so reliant on the sharpness of stark contrast and what are the stakes in these profuse distinctions?

The answer to this question touches on something deeper than the mere aesthetics of constitutions and the moments linked with their conception and adumbration. Initially, and above all else, constitutions need to clear the ground for a future set of experiences. The contrasts that are implicit in the metaphors they trade in are linked with distinctive narratives and constitutional visions and ultimately linked with the contested nature of modern politics. Such narratives dislodge rival modes of imaging collective life, institutional arrangements, and norms of governance. They displace and replace memories and practices, and are thus freighted with issues relating to culture and embedded forms of social existence. The starkness of the contrasts that the founding of constitutions rely on, and deploy, are the metaphorical and textual precursors to the grand and expansive project of remoulding of experience and giving it a distinctly political and national cast.

But, as with so many dramatic gestures, there is an anxiety and nervousness implicit in them—in part concealed, in part revealed—often by the sheer audacity of their proclamations. ‘We, the people’, that collective pronoun that putatively authorises so many constitutions, including the Indian one, does so from an uncertain and proleptic position. It knows itself to be only an artefact of the very thing it professes to be creating, and hence, as it were, an embryo professing the fullness of its own maturity. Similarly the nation on whose behalf the constitution speaks and whose identity it claims to secure is not yet unified as a nation in the appropriate sense; the State and the government that the constitution authorises are not yet stable entities; the offices and authorities it articulates are provisional place holders imbued only with high expectations; the principles that it articulates are abstract, and not yet backed by precedent or interpretive clarity; and the history that it professes to demarcate itself from still crowds in on the present. The dramatic masks what is provisional and promissory.

It is therefore not surprising that, in the grand ritual scenes that mark the founding of constitutions and the assemblies that issue them, there are also less noted theatrics that suggest the urgent need to secure the validation and recognition of others. It is all part of the complex process by which that which is new and imbued with intentions is draped in the appearance of validating and established authority. In the case of the Indian Constituent Assembly this happened immediately. Within what must have been the first minute following the convening of the Constituent Assembly in the Constitution Hall on 9 December 1946 the Chairman, Sachchidananda Sinha, read out to the assembly three messages of acknowledgement and felicitation from the Acting Secretary of State for the United States, Dean Acheson, the Foreign Minister of China, Wang Shih Chieh, and from the Australian government. This resulted in the first expressions of cheers and applause in the Constituent Assembly.

The moment of celebratory grandiosity, national self-assertion, and distinctiveness also required a particular kind of applause, which could only be secured through the echo and recognition of others. No doubt nationalism had its particularistic and culturally specific (p. 46) aspects, but at least among its more thoughtful advocates, figures such as Nehru, Ambedkar, and Fanon, nationalism also always articulated an idea whose transformative political and spiritual energies were thoroughly universal. The claim of independence, not unlike that of imperial authority and imperial subjection, had to be vindicated by a referent beyond itself. This and much else the national State shared with the Empire.

It seems fitting to that general moment that Nehru, speaking as a profoundly thoughtful participant and observer, and again while drawing on a host of sharp metaphoric contrasts, should have said, ‘standing on this sword’s edge of the present between this mighty past and the mightier future, I tremble a little and feel overwhelmed by this mighty task … I do not know but I do feel that there is some strange magic in this moment of transition from the old to the new, something of that magic which one sees when night turns to day.’20 Perhaps Nehru trembled because there was the knowledge that the night would assuredly return, that the past was not quite past, that the emergent rested substantially on noble intentions and prophecy, and that the project of national self-creation, notwithstanding all the professions of self-certainty and destiny, required the emollient of a magical elixir.

How is one to make sense at an abstract level, rather than at a merely contextual level, of such insistently grave perorations? Why does the nation, as it comes to self-consciousness, not just in India but elsewhere too, swaddle itself in such mournful garb and dire apprehensions of strife and conflict?21 More is at stake here, and an abstract perspective tells us something beyond what can be gleaned from the historical and contextual orientation.

IV.  The Narrative of Unity

As an existential contention the narrative of anarchy, civil war, and stark contrast is closely linked with the need for unity with an unequivocal centre of sovereign power. In the modern era nobody articulated the rippling stakes of this more forcefully than Hobbes. The ultimate purpose of the social contract for Hobbes was to articulate the multitude into a singular entity—‘This done, the multitude so united in one person is called a Commonwealth.’22 Such unity had to be buttressed by the narrative of anarchy and crisis as its counterpoint. The narrative in effect served to delegitimise all alternative claims to authority as satisfying the first virtue of a political order, namely peace and security; and equally, it made that narrative a permanent feature of the political order’s continued legitimacy. The very idea of sovereignty as the source of the political identity had to be undergirded by a constant reminder of their intimacy and proximity to their antithesis, namely anarchy, chaos, and death. The significance of this postulate, and its status as a quasi-metaphysical imperative, can be seen in the fact that no set of historical or extant conditions exempts a society from the implications of its implicit threat. Peace and security required the mediation of the State. (p. 47) They could not be left to the contingent resolutions offered by other social options. As the post-9/11 world has made vivid, the concern with security operates as a kind of permanent backdrop for every future eventuality, neutralising culture, society, or ethics from having an alternative claim to their redress.

Whatever the social, ethnic, cultural, geographical, or other forms of diversity and unity that might characterise a collection of individuals, they must, in addition, be forged into ‘a people’ with a distinctive political self-conception or collective identity. A central feature of that political identity—even if it involves a shared and founding allegiance to certain ‘inalienable rights’ and abstract normative principles as the American act of ‘separation’ did—is a sense of awareness that they constitute ‘one body’ with a shared vulnerability. The forging of a distinct political identity, even in a text such as the American Declaration of Independence in which the appeal to normative principles was so conspicuous, explicitly stipulated the need ‘to provide new guards for their future security’ and to ‘have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do’.23 The Declaration did not just indicate a desire to defect from George III’s Empire; it was a document that professed the formation of something separate, singular, and unified—bound together in part by a shared insecurity along with the means to contend with that predicament. Hobbes signals the significance of this metamorphosis of individuals into ‘one body’ by invoking the gravity of the biblical term ‘Covenant’, thereby associating the formation of the Commonwealth with a new communion and a radically transformed ontological condition. Locke, though his language was less dramatic, was equally explicit—‘it is easy to discern, who are, and who are not, in political society together. Those who are united into one body, and have a common established law and judicature to appeal to …’24 In brief, the unity and the diversity of the social, be it the bonds of family, religious orders, professional guilds, territorial, and functional forms of association such as towns and villages, none of these can serve as a substitute for the unity of the political.

Both Hobbes and Locke anticipate a history in which the formation of modern political societies was linked, as both cause and effect, with nationalism and its cognate patriotism and the thought that each member was communally linked with every other member; and that the nature of this link was especially poignant because the issue of the security, defence, and preservation of the corporate body of the people was always at risk. One might say, in this tradition, security, self-preservation, and political unity are literally obsessions in that no amount of attending to them fully assuages the anxiety they represent. Even with thinkers like Rousseau and Kant, who endorsed a federative ideal, there was no relaxing on the importance of patriotism, notwithstanding the civic accent they placed on it. Related to this idea was the emphasis which political societies placed on territorial and other kinds of boundaries, which were to be rigid and not porous. Hegel was summarising the broad orientation of modern political thought and practice when he wrote: ‘Individuality is awareness of one’s existence as a unit in sharp distinction from others. It manifests itself here in the state as a relation to other states, each of which is autonomous vis-a-vis the others.’25 (p. 48) And finally the idea points to the thought that in political society there must be a central source of power, even if that power is limited or checked by contesting divisions and established norms for the transfer of power.

From a constitutional perspective nations have to articulate themselves as singular political entities. It points to the crucial significance of the singular collective pronoun, ‘We, the people’, as authorising the constitutional project. In terms of constitutional salience, unity is understood not as a social or civilisational category, but rather as something that refers to a political form. Unity, as Carl Schmitt pointed out, was the essential and permanent precondition and aspiration of the modern form of the state.26

In many ways, the generative crucible of modern constitutions and modern politics turns on the metaphor and the idea of destruction and creation. As a coupling it is the font of that particular disposition by which power—in particular political power—becomes, or at least projects itself as, the singular and redemptive energy of a society. This is especially conspicuous in the case of foundational moments, but also is so often evident in more routinised politics, which, increasingly, invoke the dramaturgy of a revolutionary pretext. Many of the major themes of modern politics—the concern with power, the unity of the State and the nation, social justice, and national recognition—rely on contrasts of which destruction and creation are the starkest expressions.

The idea that political power emerges from the site of destruction or that it should need such an image for its self-generation is revealing of the nature of political power itself. At a broad level it points to the fact that power has a strained, if not antithetical, relationship to the past. In constituting itself through an act of clearing it is markedly different from social authority, which as Weber emphasised, typically relied on continuity as its mode of self-authorisation and legitimacy. This is a theme that informs the Indian Constituent Assembly, though often with ironic touches. The assembly, as is well known, was full of speeches and references to India’s glorious and multifarious pasts. One can recall Nehru’s many invocations of India’s five thousand years of history and traditions (which revealingly he often characterises through the metaphor of weight, thereby also suggesting burden), or Dr Radhakrishnan’s frequent references to India’s ancient republican traditions, or the countless other occasions in the assembly when the civilisational lustre of India was mentioned, usually with a triumphal pride. And yet—and this is the irony—the dominant temper of mind in the assembly was revolutionary, in which the challenge was to build a new society on the ruins of the old. It was this thought that guided the Assembly from its start to its conclusion, and for which the State and political power was deemed to be the necessary instrument. The metaphor of building, of creating something new, runs through the Constituent Assembly’s deliberations. It is striking that even some of the native princes in the Constituent Assembly concurred with this sentiment. When, for example, Nehru in the resolution regarding ‘Aims and Objects’ invokes, with commendation, the American, French, and Russian Revolutions it is because, as he says, they ‘gave rise to a new type of State’.27 For that new State to have the stature and power requisite for the crafting of a new society, the past had to, quite literally, be past. It could survive only as something on which the State could do its work, as though it were an inherited one-dimensional coda, but not as a living (p. 49) force that infused the present. This is how Nehru, for example, typically conceptualises the relationship of the past and the State. In the Discovery of India, at one point Nehru paints two images of India: the first is dotted with innumerable villages, towns, and cities teeming with the masses; the second image is of the snow-capped Himalayas and the valleys in Kashmir ‘covered’ as he says ‘with new flowers and a brook bubbling and gurgling through it’.28 And then, in a remarkably self-conscious admission of the romantic and revolutionary’s preference for blank slates and unpopulated places, for geography over history, he says: ‘We make and preserve the pictures of our choice, and so I have chosen this mountain background rather than the more normal picture of a hot, subtropical country.’29 One way of conceptualising the enduring challenge of the Indian State is to say that it has always attempted to stop the past from tearing the soul of the nation apart, with power as its principal instrument in this therapeutic endeavour.

V.  History and the Future

A decisive axis on which constitutions wager their authority is temporal. They typically pit the past and the future against each other. They deploy the text of the constitution as though it were a dam, by which the flow of the past could be held back or redirected and the elevation of the future repositioned at another plane. This is what is required for clearing the ground for a new mode of thinking and organising the administration of power. A crucial feature of that mode of thought, for which constitutions supply an essential tool, is that they must, from the outset, be oriented towards the future. Constitutions must sanction a mode of imagining and acting which, through its abstractness, can anticipate a future set of intentions and hence a capacious field for the exercise of power. Power in this sense always has an anticipatory mode of address. James Wilson, speaking at the Philadelphia Convention, put the matter with succinct clarity: ‘We should consider that we are providing a Constitution for future generations, and not merely for the peculiar circumstances of the present.’30

Nehru spoke in a similar vein in his famous inaugural address on the night of 14 August 1947. He was preparing the nation for an experiment in a temporal abstraction. The only register in which the nation could be spoken of was the future and the vision associated with it. It was a moment when, as he said, ‘we step out from the old to the new, when an age ends’ and when ‘the future beckons to us’.31 The fact that the Constitution was to realise a beckoning from the future is understandable; but it was equally, and more vexingly, burdened with the challenge of bringing an age to an end and drawing a curtain on the past. Such pronouncements are linked, through drama and metaphor, with softening the conundrum that attaches to all constitutional founding moments—that is, of supplying a foundation to that which purports to be a foundation. Notwithstanding the warrant of history, legislative precedent, and, in the Indian case, the hugely significant fact of (p. 50) becoming an independent nation, it is only the future that could stand as the foundation of the Constitution. Ultimately, constitutions wager on being able to create in the future the conditions through which justice, morality, order, and a regime of giving and accepting reasons become real and serve as norms.

In the Indian and more broadly post-colonial context, the relationship of power to history is fraught with imperial associations. In the nineteenth century, every major expression of European political thought had made history the evidentiary ground of political and even moral development. In Hegel, Marx, and JS Mill, notwithstanding their differing accounts of historical development, history was the register through which alone a society’s political condition and political future could be assessed. Hegel’s articulation of the state as the embodiment of a concrete ethical rationality represented the realisation of a journey of Reason that originated in the distant recesses of the East. Marx’s vision of a proletarian future had its explanatory and political credence in overcoming the contrarian forces that fetter and spur historical movement. Mill’s ideal of a liberalism that secured the conditions for the flourishing of individuality again explicitly rests on having reached a point of civilisational progress ‘ … when mankind have become capable of being improved by free and equal discussion’.32

These arguments had a specifically imperial inflection. In Mill, who was by far the most influential liberal advocate of the Empire, the argument went broadly along the following lines: political institutions such as a representative democracy are dependent on societies having reached a historical maturation, or, in the language of the times, a particular level of civilisation. But such civilisational maturation was differentially achieved. That is, progress in history itself occurs differentially. Hence, those societies in which the higher accomplishments of civilisation had not occurred plainly did not satisfy the conditions for a representative government. Under such conditions, liberalism, in the form of the Empire, serviced the deficiencies of the past for societies that had been stunted through history. This, in brief, was the liberal justification of the Empire. Its normative force rested squarely on a claim about history. It is what Dipesh Chakrabarty has called the ‘waiting room’ version of history.33 The idea was that societies, such as India, had to wait until they were present in contemporary time or what amounts to the same timing in contemporary history. They had to wait because their history made it clear that they were not ‘as yet’ ready for political self-governance. The denial of an autonomous political realm was the debt paid by the present on behalf of a deficient and recalcitrant past.

The nationalist response to this historically anchored waiting room model was to agree with the idea and the logic of argument but to disagree with the particulars of its application. Here, as elsewhere, Gandhi is the exception because his conception of civilisation and its cognate progress were never historically driven. When Gandhi speaks of civilisation, it is invariably as an ethical relationship that an individual or community has with itself, with others, and with its deities.34 Whatever else this does, it cuts through any reliance on history as the register from which alone progress can be read, evaluated, and directed. But the (p. 51) more typical nationalist response, including among the social reformers of the nineteenth century, was to concur with the claim that progress was historical, but to demur on the point that India was not ‘as yet’ ready. The nationalist claim instead was that India was in fact ready, that it had paid its debt on behalf of a ‘backward’ past through two centuries of tutelage. Its claim to political autonomy was simply the other side of the claim that it was present in contemporary time and thus freed from the residual vestiges of historical time.

VI.  The Social Question

But what did it mean to be freed from history? It did not mean that India was not affected or influenced by its past, or that the problems of poverty, caste, and numerous other social and economic woes were without a historical dimension. That would have been rank stupidity, and the framers of the Constitution and the members of the Constituent Assembly were not fools. Instead, the historical aspect of these problems is taken as part of their social scientific and political nature, but not as an inheritance that limited the potential of political power. All historical issues get automatically translated into the language of politics and in that translation they lose any temporal dimension of the past. History is brought to a threshold where, to recall Nehru’s famous words, ‘an age ends’.35 The instrument through which this temporal sequestration is effected is political power. History becomes a social and contemporary fact on which politics does its work, by which I mean that history gets translated into a medium where it is available for political modification. To put the point perhaps overly starkly, the challenge of caste injustice becomes analogous to that of the building of industry or large dams. They are all challenges in which the State draws and leans on the guiding primacy of science and social science. This conception of the political is nothing if not presentist; it loses an element of temporality that one associates with notions such as inheritance. It is anchored in the amplitude of choice; everything becomes an issue of choosing by reference to the larger purposes of the nation, because the conception of politics that it belongs to is supremely about choosing and realising those purposes.

It is in this context that the concern with social issues, which is such a conspicuous feature of the Constituent Assembly debates and the Constitution, becomes relevant for two reasons. First, issues such as mass poverty and illiteracy and near-ubiquitous destitution belong to the realm of necessity because they put human beings under the pressing dictates of their bodies. To the extent that political power concerns itself with this dimension of human life (and under modern conditions it has to), it too becomes subject to a necessity. It can only represent freedom as something prospective. Its immediate ambit is dictated by the intensity of ‘mere life’. And with regard to this ambit, political power can have no limiting bounds. Under such conditions a simple logic transforms power from a traditional concern with establishing the conditions for freedom to a concern with life and its necessities. The power of the State is thus always underwritten by an elemental imperative to sustain life—the corporeal life of the citizen and the unitary and corporate life of the nation. Neither the fundamental rights which belong to citizens—with regard to which the Indian (p. 52) Constitution was famously expansive—nor the rights of the States and the communities that make up the federation has a warrant that is independent of the larger purposes of the nation. As Part III of the Constitution makes clear, the very enunciation of fundamental rights was immediately conjoined with the textual clarification of the ways in which such rights did not limit the power of the State in realising a broader national and political vision. Ambedkar’s statement to the Constituent Assembly on 4 November 1948, made the subsidiary priority of fundamental rights perfectly explicit, ‘ … fundamental rights are the gifts of the law. Because fundamental rights are the gift of the State it does not follow that the State cannot qualify them.’36

The second aspect of the social, which explains its prominence, relates to its fundamental diversity in the Indian context. The diversity of India, of its religions, languages, castes, mores, and ‘minor’ traditions had been the leitmotif of colonial and nationalist ethnography and historiography dating back to Sir William Jones, Edmund Burke, James Mill, Sir Henry Maine, JR Seeley, and numerous others from the late eighteenth century onwards. It referred to a fact which variously supported the view of India’s cultural and civilisational richness, her history of confederation, her Sabhas, Samitis, and Panchayats and the traditions of decentralised accountability; but this very diversity was taken to be in many of these narratives as the ground for India’s political backwardness, her lack of national coherence, her easy resort to internecine conflict, and her fundamentally anti-modern orientation. Nationalists had, of course, also weighed in on these debates, whose stakes they knew pertained not just to their anti-imperial claims, but also to the period that was to follow. India, as both Gandhi and Nehru concurred, lived in her villages and her villages, in being worlds unto themselves, tended to live in a benign isolation from the rest of the world. For Gandhi, village India furnished the basic social integuments for resisting the lure of a vicarious existence—a feature which most troubled him about modernity. For Nehru, as a general matter, villages entrenched practices that were archaic, anti-rational, and sectarian in their prejudices. They represented everything to which his vision of the democratic nation offered a redemptive redress.

The constitutional vision, which in the main sidelined Gandhi’s views, saw in the social diversity of India a profound challenge. It was variously coded as a resistance to the professed unity of the nation and as supporting the sectarian, inegalitarian, and pre-modern norms that sustained and promoted the social. But perhaps most importantly, the social, with its essential diversity, represented a resistance to the political vision which the Constitution attempted to put in place. Dr Rajendra Prasad’s words to the Constituent Assembly make this amply clear. They have all the familiar contrasts and binaries. On one side stands the Constitution, the unified nation, the men of honest character and integrity, the interests of the country, the ability to control and guide it; and on the other side, the diverse languages, castes, communal differences, prejudices, and the ‘various elements of life’ with their ‘fissiparous tendency’:

After all, a constitution like a machine is a lifeless thing. It acquires life because of men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them. There is a fissiparous tendency arising out of various elements in our life. We have communal differences, caste differences, language (p. 53) difference, provincial differences and so forth. It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas and who will rise over the prejudices which are born of these differences.37

This is a casting of India in the very terms that Hobbes had viewed English history in the seventeenth century in his study of the English Civil War. The social domain was divisive, the political, unifying. The constitutional vision was meant to eviscerate or, at a minimum, trump these social and fissiparous tendencies by fixing them in a unified political frame. In fact, for Ambedkar, even the idea of India’s being a federation was troubling because that term suggested the existence of parts or States that had, as in the American case, come to an ‘agreement’ to form a federation. For Ambedkar, the constitutional vision was one in which the ‘Union’ was not at the mercy of any such agreement with its constituent parts:

The federation is a Union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source.38

Not surprisingly the text of the Constitution never uses the terms ‘federal’ or ‘federation’.

For Nehru, Prasad, and others, the social diversity of India was a real, if awkward, fact, which simultaneously provoked pride in India’s civilisational fecundity and plurality, and a fear in its centrifugal potential. With Ambedkar, the diversity—to the extent that it was even acknowledged—existed solely as an administrative ‘convenience’ on the way to realising an expressly political vision. For Ambedkar, the social did not even represent what Prasad called the ‘elements of life’, because the presumption in favour of a unitary political perspective was total. It is a perspective that is revealingly (and certainly wishfully) described as appropriate to ‘a single people living under a single imperium derived from a single source’. Hobbes would have marvelled with envy at such propitious foundations—if only they had been true.

A corollary of this political emphasis was that individuals, not withstanding their rights, were understood primarily as citizens—that is, as members of a predetermined, even if only prospective, political community—and not as agents of their private material or commercial interests. The imperative for unity was so acute that something as potentially fissiparous as homo economicus could only be allowed an existence in the shadowy penumbra outside of the national ethos.

VII.  Conclusion

The underlying argument of this chapter is that the themes of crisis, impending disunity, and the prospect of anarchy all worked to produce a collective self-understanding in which a concern with national unity was deeply, indeed constitutionally, braided with the sanction and the amplification of political power. It is this widely shared conviction, one which (p. 54) I identified in its intellectual origin as Hobbesian, which I believe is the conceptual thread that ties the constitutionalism of the late 1940s with the Nehru Report of 1928 and Government of India Act of 1935, along with contemporary democratic politics and judicial activism. The only argument that challenges it comes from Gandhi and those of his ilk, who do not share the assumption of impending anarchy or crisis, and when they do are prepared to embrace its implications. The Left–Right spectrum on public policies always complements the dominant self-understanding with its belief in the primacy of political power, most often by simply refusing to offer any arguments against it and by treating it as a self-evident norm of national independence, pragmatism, and national idealism. There is in this a submerged conviction and consensus, and a correspondingly elevated faith in the State. It produces a powerful absolutism on behalf of the State, one that is, strangely—given Gandhi’s presence and stature—unmarked by contact with an opposing way of life and point of view.

One can make this point by invoking what might seem like a distant reference to Locke, though of course in many ways Locke is not so distant; his and even more so Hobbes’ spirit hovers over the Constituent Assembly like a ghostly interlocutor, not unlike the presence of Montesquieu in the Constitutional Assembly in Philadelphia. There were always two aspects to Locke’s liberal arguments. The first was an implicit defence of the State as the only organ that could legitimately coerce individuals, who were deemed to be free and hence in principle relieved of social ascriptions, such as class, place, church, and guild; and who, as citizens, had a more elevated claim that linked them to the State. The second aspect of Locke’s argument, which was more explicit and celebrated in the Anglo-American tradition, was a claim that limited the powers of the State by tying it to various norms of authorisation. Louis Hartz, in his classic book The Liberal Tradition in America, offered a famous reading in which because the familiar European feudal and social distinctions, such as class, place, church, and guild, had not taken root in America, the second of Locke’s claims came to be viewed as the whole of his argument.39 American liberalism, at least in its official or credal version, came to be understood as all about the limitations on the power of the State. It was anchored in a deep distrust of power—of which a distrust of the absolutist prince was just a single instance. The dominant impulse of this constitutionalism was thus to limit political power, to be suspicious of it, and to constrain its reach.

In the Indian case something of the reverse is true. It is the defence of the State as the ultimate backstop against anarchy, strife, crisis, and acute destitution that makes it the guarantor of national purposefulness and supplies the ground for its having a priority in our collective self-understanding. But for this to be possible the ground has to be cleared of recalcitrant historical debris. The State, of course, does not operate on a blank slate. It arrives on a scene freighted, as the colonial State was, with all manner of historical and social encumbrances. The Constitution was a way of conceptualising the problems of a new nation in the present and for the future, as a political project of profound and permanent urgency.

Footnotes:

1  Cited from Hannah Arendt, On Revolution (Penguin Classics 1977) 133.

2  Constituent Assembly Debates, vol 1 (Lok Sabha Secretariat 1955) 62, 13 December 1946.

3  See Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press 1966); Granville Austin, Working a Democratic Constitution: The Indian Experience (Oxford University Press 1999); HM Seervai, Constitutional Law of India: A Critical Commentary, vols 1–3 (4th edn, Universal Law Publishing 1991–96).

4  ‘A constitution [is] an organization of the offices in a state, by which the method of their distribution is fixed, the sovereign authority is determined, and the nature of the end to be pursued by the association and all its members is prescribed.’ Aristotle, Politics, tr Ernest Baker (Oxford University Press 1946) 28–32. See also Charles H Mcllwain, Constitutionalism—Ancient and Modern (Cornell University Press 1940).

5  Alexander Hamilton, James Madison, and John Jay, The Federalist, ed Jacob E Cooke (Wesleyan University Press 1961) 146.

6  Madhav Khosla, The Indian Constitution (Oxford University Press 2012) xii. Joseph Raz makes this point in terms of the distinction between ‘thin’ and ‘thick’ constitutional understandings. See Joseph Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’ in Larry Alexander (ed) Constitutionalism (Cambridge University Press 1998) 153.

7  I mean this claim in a broad sense. It is not meant to deny that the consensus about the state may itself be backed by a moral consensus. In fact, since the account I am offering at a very general level has a Hobbesian inflection, it is worth pointing out that for Hobbes the rationality of the state is itself underwritten by its coincidence with a moral rationality.

8  The idea of new nations as fragments of a European political imagination draws on the thought of Louis Hartz. See Louis Hartz, The Founding of New Societies (Harcourt, Brace & World 1964).

9  Writing in early 1947, Sir BN Rau reminded the Constituent Assembly: ‘It is pertinent to observe that we are still governed by the “transitional provisions” in Part XIII of the Government of India Act of 1935 … ’ BN Rau, India’s Constitution in the Making (Orient Longman 1960) 2.

10  Thus, for example, Hobbes, who offered the most influential philosophical and abstract argument for the meta-historical priority of anarchy in grounding the necessity of the State, also supported that argument as being ‘occasioned by the disorders of the present times’. Thomas Hobbes, Leviathan (first published 1651, Hackett 1994) 496.

11  Faisal Devji gives an extremely thoughtful account of both the British thinking on this matter and Gandhi’s heretical embrace of the prospect of anarchy in Faisal Devji, The Impossible India (Harvard University Press 2012), ch 6.

12  Constituent Assembly Debates, vol 1 (Lok Sabha Secretariat 1955) 50, 11 December 1946.

13  Constituent Assembly Debates, vol 1 (Lok Sabha Secretariat 1955) 64, 13 December 1946.

14  Constituent Assembly Debates, vol 1 (Lok Sabha Secretariat 1955) 68–69, 13 December 1946.

15  Constituent Assembly Debates, vol 1 (Lok Sabha Secretariat 1955) 87–90, 16 December 1946.

16  Constituent Assembly Debates, vol 1 (Lok Sabha Secretariat 1955) 81, 16 December 1946.

17  Constituent Assembly Debates, vol 1 (Lok Sabha Secretariat 1955) 103, 17 December 1946.

18  Constituent Assembly Debates, vol 11 (Lok Sabha Secretariat 1955) 993, 26 November 1949.

19  Devji (n 11), 153, quotes a letter by Lord Linlithgow to Lord Wavell with the following sentence: ‘We could not for the peace of the world allow chaos in India.’ Here, as elsewhere, Gandhi expressed a dissenting view, which was of a piece with his reluctant support of constitutionalism and the need for unity expressed around the medium of the state and political power. In 1942, during the Quit India movement, he made clear to the British that the time had come for them to leave India, even if that meant leaving the country to God and anarchy.

20  Constituent Assembly Debates, vol 1 (Lok Sabha Secretariat 1955) 64, 13 December 1946.

21  As another example, the Federalist papers are replete with similar apprehensions. One of the most frequent complaints made by the proponents of the American Constitution against the Articles of Confederation was precisely that the latter would expose the republic to anarchy, chaos, and civil war.

22  Hobbes (n 10) 109.

23  Declaration of Independence 1776.

24  John Locke, Two Treatises of Government, ed Peter Laslett (2nd edn, Cambridge University Press 1967) 367.

25  Georg Wilhelm Friedrich Hegel, Hegel’s Philosophy of Right, tr TM Knox (Clarendon Press 1945) 208.

26  See Carl Schmitt on political unity: Carl Schmitt, Roman Catholicism and Political Form (Greenwood Press 1996); Carl Schmitt, Political Theology II (Polity Press 1970) 71–72.

27  Constituent Assembly Debates, vol 1 (Lok Sabha Secretariat 1955) 61, 13 December 1946.

28  Jawaharlal Nehru, The Discovery of India (Penguin 2004) 56.

29  Nehru (n 28).

30  Max Farrand (ed) The Record of the Federal Convention, vol 2 (Yale University Press 1911) 125.

31  Constituent Assembly Debates, vol 5 (Lok Sabha Secretariat 1955) 4, 14 August 1947.

32  John Stuart Mill, On Liberty, eds David Bromwich and George Kateb (Yale University Press 2003) 81.

33  Dipesh Chakrabarty, Provincializing Europe (Princeton University Press 2009) 8.

34  For Gandhi’s views on civilisation and history, see MK Gandhi, Hind Swaraj (Cambridge University Press 1997).

35  Constituent Assembly Debates, vol 5 (Lok Sabha Secretariat 1955) 4, 14 August 1947.

36  Constituent Assembly Debates, vol 7 (Lok Sabha Secretariat 1955) 40, 4 November 1948.

37  Constituent Assembly Debates, vol 11 (Lok Sabha Secretariat 1955) 984–85, 26 November 1949.

38  Constituent Assembly Debates, vol 7 (Lok Sabha Secretariat 1955) 42, 4 November 1948.

39  Louis Hartz, The Liberal Tradition in America (2nd edn, Mariner Books 1991).