Living Constitutions

Living Constitutions

While constitutions are often conceived as elite projects, the Indian example illustrates that founding texts can have unexpected meanings for popular politics.

A protest against anti-Muslim legislation on January 16, 2020, in Kolkata, India (Indranil Aditya/NurPhoto via Getty Images)

India’s Founding Moment: The Constitution of a Most Surprising Democracy
by Madhav Khosla
Harvard University Press, 2020, 240 pp.

A People’s Constitution: The Everyday Life of Law in the Indian Republic
by Rohit De
Princeton University Press, 2018, 312 pp.

Last December, mass demonstrations erupted across India in response to new legislation that granted a fast track to citizenship for a number of religious groups but excluded Muslims. A violent crackdown followed. Protesters turned to the country’s seventy-year-old Constitution for a moral language to critique both the anti-Muslim legislation and the state’s repression of dissent. Life-size cutouts of its chief drafter, Bhimrao Ramji Ambedkar, and other members of the Constituent Assembly accompanied marchers on the streets. Mass readings of the Constitution’s preamble were staged in different languages. Live artwork, poetry, and songs disseminated this appeal to the Constitution beyond the gatherings on Twitter, YouTube, and TikTok.

The TikToking of India’s Constitution is a remarkable thing. Constitutions are rarely understood as mandates for protest. Often closing a revolutionary period, they organize, distribute, and stabilize the exercise of political power. They give institutional form to the routine practices of politics. And as mechanisms designed to settle political arrangements, they are removed from—if not antagonistic to—popular mobilization.

This gap between constitutionalism and popular politics should be even greater in India. Though the 1950 Constitution marked the culmination of national independence, the Constituent Assembly did not emerge from a revolution; its authority was based in frameworks created during British rule. Members were elected under the limited franchise of the colonial era. Although the Constitution made universal adult suffrage the cornerstone of postcolonial citizenship, the document itself was an elite project. Ambedkar recognized this problem when he told the Assembly, “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it.”

While constitutions are often conceived as elite projects, the Indian example illustrates that founding texts can have unexpected popular valences. For one thing, postcolonial elites like Ambedkar mobilized constitutionalism in service of democratic ends. But more important, postcolonial citizens captured constitutional guarantees toward the aims of challenging state authority and expanding the meaning of democratic inclusion.

 

Madhav Khosla’s India’s Founding Moment and Rohit De’s A People’s Constitution explore these intertwined strands of constitutionalism and democratic politics. Both graduates of the prestigious National Law School of India University, the authors view the Constitution through different lenses. Khosla, a political theorist, constructs a history of the ideas that shaped the Constitution’s text, while De, a political and social historian, approaches the subject from the bottom up. Their two perspectives exemplify the dilemmas of postcolonial constitutionalism and highlight the ways in which the Indian Constitution supplies a vehicle for popular protest.

For Khosla, the Constitution is a political architecture that gives shape to India’s democracy. Addressing the specific demands of postcolonial governing, it broke from historical precedent in two crucial ways. First, while political representation, universal suffrage, and social and economic redistribution were sequenced over centuries in the United States and Europe, the founding of postcolonial nations confronted the problems of representative government, democratic inclusion, and the welfare state simultaneously. Second, universal suffrage and inclusion required India’s founders to immediately and directly contend with entrenched forms of communal difference and social hierarchy, especially on the axes of religion and caste. While the architecture of the Constitution was geared toward reshaping these features of Indian society, its grammar provided new languages for democratic citizenship.

Khosla explores the relationship between constitutional form and postcolonial democracy through three pillars of the Indian Constitution: the codification of the rule of law, the centralization of state authority, and the prioritization of the individual as the basis of political representation. By codification, Khosla refers to the extensive enumeration of the Indian Constitution, which has the distinction of being the longest in the world. Beyond enshrining fundamental rights and establishing the framework of separation of powers, it spells out arenas of state action often left to legislative and administrative bodies. For instance, Part IV, the Directive Principles of State Policy, comprises fifteen articles by which the government strives “to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.” Though the obligations laid out in this section were not judicially enforceable, the directive principles contained an ambitious commitment to social and economic transformation.

The bid for codification did not end with these principles. Along with specifying rights, the Constitution also limited their reach. The right to freedom of speech and expression, for example, does not “prevent the State from making any law relating to libel, slander, defamation, [or] contempt of court.” Many states that guarantee freedom of speech also allow for anti-libel laws, but the writing of this exception into a constitution is peculiar, and it suggests an expansive vision of state power.

Each delimitation of fundamental rights was subject to significant contestation. Proponents of codification like Ambedkar argued that the Constitution must establish “common meaning to a set of principles relating to democracy in a land without such meaning,” Khosla writes. By giving a thick account of the powers of the legislature, the Constitution sought to generate a common sense of the new democracy. It set what Khosla describes as “an overarching conception of social welfare” without dictating particular legislation, supplying a framework that made democratic action and deliberation possible.

If codification was a way of spelling out the principles of what the founders called a “sovereign democratic republic,” the Constitution relied on state centralization and a political system based on individual representation to address the entrenched inequalities of Indian society. Neither of these were inevitable. The question of how to organize representation in ways that protected the Muslim minority was a vexed question (since 1909, legislative seats had been reserved for Muslims), and no less a figure than Mohandas Gandhi had advocated for decentralized alternatives to concentrated state power. 

The Constitution’s framers, by contrast, saw local government- and group-based representation as structures that reinforced existing hierarchies. As a distant, impersonal, and coercive force, the state would act as the catalytic agent of social transformation, standardizing and universalizing the social conditions of individual citizens over time. Centralization marked a triumph of the individual over the village, and the commitment to the individual as the primary unit of politics was reinforced in the Assembly’s rejection of communal representation. Rather than treat politics as an organized bargain between fixed groups, individual representation viewed citizens as participants in a joint venture whose interests and actions would constitute shifting majorities.

A commitment to individualism did not foreclose the political recognition of group difference, as the Constitution’s approach to caste demonstrates. Here the founders aspired to end caste hierarchy, but to do so they affirmed the need for preferential treatment. Along with the abolition of untouchability and an expansive anti-discrimination regime, it aimed to ensure that all Indians could participate in the shared project of democratic politics.

 

Students of postcolonial politics are always forced to contend with the institutional and ideological legacies of the colonial past. With two-thirds of its text drawn from the 1935 Government of India Act and its retention of sedition emergency laws, India’s constitution puts the question of colonial inheritance in sharp relief. Underlying this textual repetition, Khosla’s study suggests, are the ways in which postcolonial founders inherited an account of democracy’s preconditions and a pedagogical conception of politics. Nineteenth-century imperialists had argued that Indian society was unfit for self-representative institutions. Imperial tutelage was, in this view, a path to eventual self-rule. Postcolonial founders rejected alien rule but nevertheless retained some skepticism about the Indian public’s capacity for democracy. They looked to the Constitution to train the country for self-government. The document was, as Khosla emphasizes, not a “rulebook” but a “textbook.”

What Khosla calls the “question of democracy in an environment unqualified for its existence” links India’s founding moment to the wider postcolonial world. And he frames his study as a window into the challenges of constitutionalism since decolonization. The conception of India as “a most surprising democracy,” however, suggests an exceptionalism that belies this comparative aspiration. Moreover, as is the case with narratives of American exceptionalism, such a perspective tends to view the crises of democratic politics as aberrational, as deviations from the founding democratic texts.

But the rise of the Bharatiya Janata Party and the current crisis of democratic politics in India challenges this view. Narendra Modi’s government has effectively deployed the architecture of the Constitution. It regularly invokes constitutional limitations on fundamental rights, and it has taken full advantage of the state’s centralized authority. Religious and caste identities have not only survived the end of communal representation but are now entrenched as features of democratic politics.

If India’s constitution is a textbook that sought to mold Indian democracy, it has not heeded its authors’ instructions. To understand why this is the case, we need not conclude that the people have failed to take up to the lessons of the founders. Instead, we might examine how constitutional precepts intersect with political institutions and social practices to generate unexpected and unintended consequences.

 

De’s A People’s Constitution takes up this approach through a social history of the Constitution in its early decades. He focuses on provisions that allowed citizens to petition the Supreme Court for the enforcement of fundamental rights and that empowered state and provincial courts to issue writs against the government for violations of rights or “any other matter”—broad procedural remedies that allowed citizens to contest the Constitution’s ambitious efforts to reshape Indian society. By considering the figures who challenged the Indian state in court, De establishes that constitutional interpretation was not restricted to elites. The Constitution, he argues, facilitated the emergence of a particular kind of political subject: the citizen-litigant. In keeping with Khosla’s view of the Constitution as a pedagogical textbook, India’s citizen-litigants learned to speak the language of constitutional law.

The link between litigiousness and democracy will be familiar to readers of Alexis de Tocqueville. “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question,” he wrote in Democracy in America. According to Tocqueville, lawyers were suspended between the people (from which they emerged by “birth and interest”) and the aristocracy (whom they resembled in “taste and habit”). They had a moderating role in democratic society. At the same time, citizens’ participation in legal proceedings, especially through juries, democratized the habits of the courtroom.

As De shows, however, the citizen-litigant takes on a distinctive character in the postcolonial context. The four sets of litigants he identifies represented minority religious and caste communities. As vilified minorities, they invoked the rights of workers and property owners in ways that deflected from their ascriptive status. But they did not leave behind communal politics. Their litigious practices illuminate the complex interplay between “liberty, property, and community,” De writes, disrupting a strict separation of individual and group rights.

The “case of the invisible butchers” powerfully illustrates this point. Although Hindu cow protection societies had been a persistent feature of the colonial era, the Constitution did not include a straightforward prohibition of cow slaughter. Instead, under the government’s obligations to “organize agriculture and animal husbandry on modern and scientific lines,” Article 48 of the Directive Principles allowed for “prohibiting the slaughter, of cows and calves and other milch and draught cattle.” Five years after the Constitution became law, more than half of the Indian states had banned cow slaughter. The state of Uttar Pradesh passed the most comprehensive ban in 1955. A year later, twelve writ petitions had been filed before the Supreme Court challenging the constitutionality of this act.

The Qureshis, a South Asian Muslim caste employed in the meat trades, initiated these petitions. As Muslims, they objected to infringements on their religious liberty. But they emphasized their role as butchers, arguing that the government had violated the rights to equality and trade and the prohibition against depriving citizens of property without compensation. Their invocation of economic rights yielded mixed results. On the one hand, the Court found that bans on the slaughter of cattle did not unfairly undermine the trade of butchers because they could slaughter and sell other animals. On the other hand, as De writes, it ruled that “a total ban on slaughter of female buffaloes, bulls, and male cows after they cease to be productive could not be supported in the interest of the general public.” Though many of the bans were upheld, the cow was dislodged from its status as a political symbol and reinscribed as a means of subsistence and trade.

De’s study of the practices of citizen-litigants offers a different vantage point from which to consider the continuities and discontinuities that characterized the colonial and postcolonial eras. Each arena of litigation he considers had already emerged as the site of political or legal contestation during the colonial period. But the rights and remedies guaranteed in the Constitution recharged their political valence. In the example of the Qureshi butchers, cow slaughter was dissociated from colonial-era protections of religious freedom and customary law to reappear as a matter of “production, consumption and retail.”

Through the courts, citizen-litigants dealt powerful blows to the confident and assertive self-conception of the postcolonial state. Its pedagogic vision of development conceived of the citizen as “a passive recipient of the government’s program.” Prohibition laws, for instance, sought to protect individual citizens and the public from the injurious health and social consequences of intoxication. A vision of state rescue was also written into the Constitution’s prohibition of human trafficking as a fundamental right. The passage of the Suppression of Immoral Traffic in Women and Girls Act (SITA) in 1956 drew on this constitutional commitment to indirectly abolish prostitution.

Litigants against the prohibition laws and SITA chastened the paternalism of the state. When the Bombay High Court struck down the exemptions in the prohibition law on alcohol for foreign tourists and former princes as well as the extraordinary police powers the law granted, Deputy Prime Minister Sardar Patel bemoaned, “Our Constitution is so much against us.” Similarly, when “wayward” women such as dancers, singers, and sex workers resisted the attempted rescue, state reformers were taken aback. For Durgabai Deshmukh, the chairwoman of the Central Social Welfare Board, “It was painful . . . to hear an attempt made to invoke fundamental rights” in legal challenges that sought to uphold “prostitution or the business of brothel keeping.”

De argues that what enabled subaltern women to resist was their very marginalization, which had long made them subject to regulation and policing. Learning to navigate the state and especially the criminal justice system gave them “greater awareness of the laws that affected them than middle-class or elite women, who had little direct contact with the state.” Their engagement with the law was also supported by self-formed organizations like the Allahabad Dancing Girls Union. The legal petitions filed by women like Husna Bai continued to challenge the discretionary power of state actors, but in representing themselves as economic actors, they also introduced a language of sex work avant la lettre. Although judicial decisions have not affirmed this view, De contends that “the belief that the right to work in the Indian Constitution guarantees the right to exchange sex for money continues to be asserted by prostitutes’ organizations.”

Throughout, De shows that “Constitutional law is not removed from street politics.” Their connection operates in at least two ways. First, litigation provides a way for minority groups to challenge the state, even when public opinion is not on their side. Second, the practice of asserting one’s rights within the courtroom can inform and shape mobilization and protest when the time is right. 

 

This relationship between constitutional law and street politics brings us back to the appeals to the Constitution in last year’s protests. Unlike the citizen-litigants of De’s study, the protesters did not invoke specific fundamental rights. Instead, they read the words of its preamble:

We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. . . .

The invocations of the people as well as the Jacobin trio of liberty, equality, and fraternity place the Indian Constitution in the tradition of the Age of Revolution. But as the political theorist Pratap Bhanu Mehta notes, it also departs from its eighteenth-century precedents. Not only does it include and prioritize justice, it is also unusual in the absence of God, history, and identity. Unburdened by posterity and theology, “our Constitution,” Mehta proclaims, “liberates us to imagine [justice, liberty, equality, and fraternity] in whichever way we choose.” He calls it a “charter of liberation.”

If the Constitution, as Khosla argues, functioned as a textbook that instructs in order to bring into being a democratic body politic, the preamble’s charter of liberation announces an alternative image: a democratic people made by its own self-declaration. In the act of reciting the words of the preamble, diverse assemblies of citizens reclaimed the moniker of “We the people of India” against the state’s monopolization of their name. Whether these acts of reclamation and reassertion will mount a sustained challenge to Modi’s government and point to a new path for Indian democracy will depend in part on how they are translated into the political practices and institutions suspended between the Constitution and the street.


Adom Getachew is Neubauer Family Assistant Professor of Political Science at the University of Chicago and author of Worldmaking after Empire: The Rise and Fall of Self-Determination (Princeton University Press).


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