![]()
1 Constitutional Democracy in India
An ideational battle
The 1950 Constitution of India is an outcome of an ideational battle that began long before it was formally framed by the members of the Constituent Assembly in little less than three years between 1946 and 1949. Tracing its intellectual genealogy to the philosophy of Enlightenment, the chapter shows that the Constitution heavily drew upon the liberal values of constitutionalism which flourished in India in the wake of colonial rule. Being sensitive to the Gandhian preference for village swaraj, the founding fathers also addressed the concern of the Gandhians in the Assembly by incorporating a new chapter in the Constitution. The constitution-making in India is thus a theatre of contestation in which ideas with completely different socio-economic roots competed with each other for a common ideological aim of making a constitution for independent India which was acceptable to all. Two contrasting perspectives seem to have governed the processes of constitutionalizing India: on the one hand, emphasizing the role of the state as the primary agent for liberal reform, the liberal constitutionalists defended a constitution supportive of the rule of law irrespective of class, caste and clan; there was, on the other hand, another well-argued perspective in which the idea of a village republic prevailed over other considerations as most appropriate for India’s socio-economic growth. A perusal of the debates in the Constituent Assembly that came into being in 1946 reveals that the debates hovered around liberalism and the Gandhian idea of swaraj or self-rule emphasizing the Kantian emphasis on individual freedom in a collective existence. The fact that the Gandhian insistence on the village-based constitutional democracy did not receive adequate support from the members of Assembly allowed the liberals to shape the Constitution in accordance with their ideological predilections. Nonetheless, by articulating an alternative ideational package, the Gandhians paved the way for differently textured constitutional principles of governance which gradually became decisive in independent India with the increasing importance of democratic decentralization in governance.
The aim of this exercise is to understand the 1950 Constitution of India as an outcome of an ideational battle that began long before it was formally framed by the Constituent Assembly which was setup in 1946 as a result of negotiations between the nationalist leaders and the members of the Cabinet Mission.1 In a little less than three years between 1946 and 1949, the Assembly discussed each provision which was to be incorporated in the future constitution for India. It was a difficult period when the joy of freedom was marred by national trauma of partition and also the assassination of Mahatma Gandhi. The Indian Constitution was born, thus argues Paul Brass, ‘more in fear and trepidation than in hope and inspiration’.2 There is hardly a strong argument to dispute this proposition presumably because of the context in which the Constituent Assembly began and concluded its proceedings. Nonetheless, the founding fathers hardly deviated from their commitment to liberal governance which was articulated persuasively in the 1950 Constitution. Being dedicated to the cause, the framers thus upheld ‘the art of the possible and never allowed [the context] to blind them to their aspired goal’.3 By seeking to trace the intellectual roots of the processes of constitutionalizing India to an ideational battle spanning over a century, the chapter deviates from the conventional understanding of the making of India’s constitution by arguing that it was merely a legatee of the endeavour of accommodation of differences over contrasting perspectives, but was also reflective of concerns for change. Contrary to the widely circulated contention that the Indian Constitution is largely a borrowed doctrine, the chapter thus reinforces the argument that it is also an ideational project in which competing ideas jostled during its preparation.
Driving ideological forces
Three major ideological forces seem to have been critical in the making of the Constitution: colonialism, nationalism and democracy. The colonial, nationalist and democratic articulation of ‘the political’ remains therefore crucial in comprehending the processes that influenced the Assembly. Two points need to be kept in mind: First, although colonialism and nationalism are surely antagonistic, there is no doubt that the former provoked circumstances in which nationalism emerged as a powerful ideology to articulate the voices of the colonized. Secondly, colonialism also led to a slow process of democratization by gradually involving people favourably disposed towards alien administration. The colonial state had permitted some measures of representation to carefully selected Indian interests. But it had also ensured that ‘the state had always operated at a level removed from the society which it governed’. Appropriating ‘the executive privilege’ for itself, the colonial state appeared to ‘stand outside the realm of and therefore free to arbiter over social conflict and political competition [and its relationship with the subject] continued to be conducted in the language of supplication and concession, grants and demands, charters and petition, grievances and repression’.4 The British were admittedly influenced by their own ‘theories of liberalism and self-government’. Through a mixture of motives that ranged from ‘self-interests and ideological commitments’, the colonial government introduced principles of representation, appropriate for its rule, into the colonial legislature.5 The British imperial attitudes in India thus seem to be ‘highly ambiguous’, resulting from their efforts to negotiate their liberal regard for self-rule as the best form of government and their vested interests in being imperial masters.6
Critical ideational inputs
The 1950 Constitution of India is drawn on the fundamental liberal values which flourished during the long colonial rule. Liberal ideas were articulated both by the British liberals7 and their Indian counterparts.8 While the former were paternalistic in their attitude, the latter held liberalism as perhaps the only empowering ideological design of governance which was appropriate for India. In contemporary scholarship, three important types of liberalism have been identified: colonial liberalism, nationalist liberalism and radical liberalism.9 Drawing on their paternalistic concern for the colonized, the colonial liberals contributed to the consolidation of a system of governance which would prepare Indians to appreciate rule-driven administration. Although they differed in their assessment of the situation in India, they agreed that colonialism was beneficial to the rise of India as a well-governed polity in due course. While they strongly felt that representative democracy was certain to flourish in Australia and America given their identical civilizational identity, India was simply incapable of self-government, argued one of most influential liberal thinkers, JS Mill, because of the lack of social homogeneity.10 Nonetheless, liberal ideas of limited government and the rule of law, equality before law and education as a means of social empowerment were gradually introduced in India the wake of the colonial rule. A careful study of the British rule in its initial phase suggests liberalism created a space for the growing involvement of the Indians in administration. Two substantial events changed the course of colonialism: (a) the founding of the universities of Calcutta, Madras and Bombay helped develop an articulate opinion of the educated Indians on the British rule. It captured the growing discontent among the Indians who always remained, for obvious reasons, peripheral in administration. (b) The inauguration of the Indian National Congress in 1885 created a new platform to ventilate the grievances of the ruled. This also became a forum for the Indians to articulate demands for better rule, the outcome of which was the 1892 Indian Councils Act. As the Act underlines, its aim was
to widen and expand the functions of the Government of India, and to give further opportunities to the non-official and native elements in Indian society to take part in the work of the Government, and in that way, to lend official recognition to that remarkable development both of political interest and political capacity that had been visible among the higher classes of Indian society since the Government of India was taken over by the Crown in 1858.11
The Act provided for the enhanced membership of the Councils. It was mandatory for the government to consult the representative bodies and institutions, approved by the government, before selecting nominees for the Councils. Besides legislative powers, the Councils were also empowered to pull the Executive on financial matters though it had no power to either revise or reject decisions on this matter. However, the growing weight of the Councils is indicative of a sea change in colonial rule. As Morley, the Secretary of State, articulated,
There are two rival schools of thought, one of which believes that better government of India depends on efficiency, and that efficiency is, in fact, the end of British rule in India. The other school, while not neglecting efficiency, looks also to what is called political concessions.12
This declaration laid one of the foundational principles of the British administration in India. As a first step, a Royal Commission was appointed in 1907 to look into the administration that seemed to have lost its viability in the context of growing discontent among the ruled. The aim of the Commission was to provide an administration which was adapted to the changed social, economic and political realities of India. While recommending the corrective measures, the Commission was guided by the following factors:(i) the difficulties of ruling the vast sub-continent from a single headquarter and the inevitable failure in the statesmanship and efficiency in administration; (ii) the difficulties of applying uniform schemes of development for the provinces, which are socio-culturally diverse; (iii) to instil a sense of responsibility among those engaged in provincial and local administration and (iv) to strengthen the colonial rule by educating people in the values of strong administration. On the basis of the recommendation of the Commission, a bill was introduced in 1908 which became the 1909 Morley-Minto Reforms. As a political scheme seeking to strengthen colonial rule in India, the 1909 Act introduced profound changes with long-term effects in representation of communities in Councils. This is the beginning of a trend that gradually unfolded, as will be shown below, by dwelling on the legislative steps that gave impetus to the steady growth and consolidation of representative institutions in India.
Nationalists and radical liberals
Liberalism reached the Indian shore through the colonial liberals who however had strong reservations about its application in India. Nonetheless, they inspired the early nationalists who were politically baptized through those texts which articulated the liberal approach to politics and governance. Liberalism gained hegemony in part because of ‘the Anglicization of public life’.13 The political ideas of JS Mill, Herbert Spencer and August Comte, among others spread to the English-educated classes through English and later vernacular newspapers, books and pamphlets. The influence was so well-entrenched that even the Indian National Congress had no qualms in openly appreciating the British rule because it purportedly drew on the fundamental ethos of liberalism. In its eleventh annual session, Indian National Congress thus declared that
to England, we look for inspiration and guidance [because] English history has taught us those principles of freedom which we cherish…. We have benefitted by the education that we receive and by the material civilization which annihilates time and distance, and brings us together to feel a common interest in our own elevation under a vivifying influence of a literature and a history, the like of which the world has not known in the past for its triumphs in the emancipation of mankind.14
However the delegates were highly disappointed since colonialism in India had already manifested in its most brutal form. Hence they made an appeal to the rulers ‘to gradually change the character of her rule in India, to liberalize it … so that in the fullness of time, India may find itself in the great confederacy of free states, English in their origin, English in their character [and] English in their institution...
