THE coming of freedom in India can be conceptualised as consisting of not a single moment or decisive event but of two. The first was of course the midnight hour of August 14, 1947, when a formal transfer of power took place from the colonial government to the first government of independent India. The moment had its own ambiguity, however. As he took charge as Indias first Prime Minster, Jawaharlal Nehru spoke in sonorous cadence in Parliament: Long years ago we made a tryst with destiny, and now the time comes when we shall redeem that pledge. Elsewhere, Mahatma Gandhi, the undisputed leader of the entire freedom movement, was stricken with grief over Partition and the great killings that raged in large parts of the country. He ignored the Independence celebrations and busied himself, instead, with putting out the fires as much as he could.
The second moment, far less ambiguous, in which the long march from colonial subjection to full democratic citizenship was concluded with the coming of universal suffrage, the promulgation of Fundamental Rights and the declaration of Directive Principles, was achieved two and a half years later with the adoption of the Constitution on January 26, 1950. Conceptually, 1947 is something of a negation: when India ceases to be a colony but, in the same process, also loses roughly a quarter of the population and the territory that the freedom movement had sought to liberate. The promulgation of the Constitution signified the rising out of that past and achieving a new kind of wholeness in what we now had become. The two moments are complementary, just as the movements towards Independence and towards constitutional governance had overlapped for roughly a quarter century prior to that.
The idea of a Constitution for India kept gathering force throughout the 1920s as the national movement increasingly became a mass movement over a decade after the end of the First World War. By 1928 an All Parties Conference had appointed a committee, under Motilal Nehru, for preparing a draft. The Nehru report that came out of this exercise that same year included many of the ideas that eventually went into Part III, on Fundamental Rights, of the 1950 Constitution. Interestingly, that same report also included the suggestion that the provinces should be reorganised on a linguistic basis. By 1933, Jawaharlal Nehru was advocating the idea of electing a constituent assembly for this purpose, on the basis of universal suffrage.
The idea of a constituent assembly remained a part of the Congress platform in subsequent years, even after the promulgation of the 1935 Government of India Act, the 1937 elections, the formation of Congress Ministries, etc.; indeed, the Congress-led provincial governments passed a resolution demanding the repeal of that Act and its replacement by a constitution drafted by such a constituent assembly. The demand was eventually accepted by the British Cabinet Mission, which nevertheless rejected the idea of election by adult franchise as impractical at that stage and put forth a complicated plan centred on two main mechanisms: that members of the existing Provincial Assemblies would elect members of the constituent assembly, and that Muslim and Sikh legislators were to elect their quota on the basis of the share of their co-religionists in the population.
Nehrus position had all along been that the British should first agree to Indian independence and a constituent assembly would then be elected through universal suffrage. Gandhi on the other hand had said that a constituent assembly may well come before any agreement on independence. In the event, the Congress registered its unhappiness with the proposal put forward by the Cabinet Mission but decided to work through this mechanism. In short, Gandhis idea of starting the work of a constituent assembly with or without universal suffrage and while colonial authority was still very much in place prevailed. The Muslim League, with its 73 members, raised a series of objections and never participated in the working of the Constituent Assembly.
The Congress decided to carry on the work of drafting a Constitution for India without the League, so that the Constituent Assembly that launched itself on this task on December 9, 1946, well before Independence or even the Partition Plan, was composed predominantly of Congress legislators. The Objectives Resolution, Nehrus principal contribution to the document, was passed in January 1947. Historians who represent the Congress viewpoint jubilantly recall that day, December 9, 1946, as the day when the chronicle of independent India truly begins. The fact that Muslims in that quota-ridden Assembly were represented by four members of the Congress but not by the 73 members of the League seems to suggest that the chronicle of Partition also begins with that very day.
This historical background is important. That Constituent Assembly was then to become, concurrently, the first legislature of independent India. Its very structure had been determined by the Cabinet Mission Plan and it had functioned for the first eight months of its existence under colonial authority. It was not a product of universal suffrage, not even indirectly. Its members from British India were elected by members of Provincial Assemblies, who themselves had been elected in a system that gave the right to vote to about 15 per cent of the population on various criteria of property, education, etc. These restrictions meant that no one from other class backgrounds and political persuasions could be elected.
With the League boycotting it, the Assembly was essentially a one-party Assembly, and differences of opinion within it were really differences between the Congress Left and the Congress Right. The Congress Left was numerically small, though it had much prestige and influence because of Nehru, which was reflected in Part IV of the Constitution, the Directive Principles of State Policy. The predominant position was that of liberal conservatism as modified by Gandhis and Ambedkars profound social concerns with caste and analogous social deprivations; all that got incorporated in the much lengthier Part III.
The whole history of the Congress under Gandhi was a history of masterful comprise. This had become the accepted, internalised ethos, whether or not Gandhi intervened in particular proceedings. Thus, the Directive Principles, representing an authoritative but minority position in the Assembly, were included but made non-justiciable; they were the spiritual essence of the Constitution but had no legal status. Fundamental Rights, on which liberal/reformist consensus could be obtained, were to be the real foundations of law.
The Assembly was studded with legal luminaries, starting with Nehru and Ambedkar who exercised the largest influence, but also many others, including Sardar Vallabhbhai Patel who oversaw the making of the constitutional and legal frameworks for incorporating the princely states; not to speak of Gandhi, the barrister, in the background, whose masterly workings of British law from all sides, pretty much as a cool cat plays with a bunch of mice, have never been as fully and ably studied as they deserve to be.
The result is that the Indian Constitution draws upon a whole range of constitutional traditions, from the American to the Irish, with the range and juristic ecumenism so broad that the constitutional provisions that made Indira Gandhis Emergency possible and have always facilitated the actions of the armed forces in Kashmir and the northeastern region have sometimes been traced to the jurisprudence of the Third Reich. Meanwhile, the 1935 Act of the colonial government was to be the primary basis for bulk of the nitty-gritty of the Constitution that came to be drafted first in the twilight year of the empire and then in its immediate aftermath. Yet, it needs to be said that the Constitution also identified itself in its Preamble as much with the Preamble to the American Constitution as with Enlightenment thought.
So, even as we celebrate our Constitution as probably the finest that any bourgeois polity has ever devised for itself, which is of course true, it is best also to recognise that it is also a product of its own time and context, and of those who made it. More importantly, a constitution is only as good as not only those who frame it but, much more crucially, only as good as those who work it subsequently the judiciary, the legislators, the executive itself, and the elite among the lawyers since then.
In the present consideration, I shall be preoccupied mainly with the main features of the Preamble, the Fundamental Rights and the Directive Principles, and I shall ignore the bulk of the Constitution.
In the Preamble, the original wording of the Constitution described India as a Sovereign Democratic Republic. This was expanded to Sovereign Socialist Secular Democratic Republic with an amendment in 1976. The timing of this belated revision was somewhat ironic. That was precisely the moment when the democratic character of the republic was under siege. Whatever socialist character the Nehruvian state under Nehru and Indira had had was soon to be dissolved. And, as soon as the Emergency was over, India was to have its first non-Nehruvian government, with Morarji Desai, historically a stalwart of the Congress Right and an enemy of that socialism, as its Prime Minister; the Jana Sangh, enemy of socialism as well as secularism, provided the largest of the contingents to the party and government over which Morarji presided. To the word Sovereign we shall return, below.
In the clauses following that opening, two things are worth noting. The word Justice is taken from the American Preamble but sought to be given much more punch. There is, first, the word social which points to many justiciable clauses of Fundamental Rights and in turn facilitates the constitutionally guaranteed right to redress for historically structured oppressions, coming down the centuries, pertaining to the oppressed castes, women as well as minorities of various kinds. The word, political, attached to Justice seems to point, most clearly, to the enormous expansion of suffrage: from some 15 per cent towards the end of British rule to immediate expansion, with the advent of independence, to all citizens.
We, who are the products of that historic moment, rarely recognise the magnitude and magisterial scope of that victory for the people of India. No Western country ever gave voting rights to women at the very advent of its democracy. Our Constituent Assembly, flawed as it was, did. The phrase We the People in the American Preamble is fraudulent; that Constitution did not even abolish slavery of African-Americans. By contrast, the Indian Constitution not only abolished untouchability but also provides specifically for social inclusion and progress of the oppressed castes.
And then, still attached to the word Justice, is the word economic. Well, Fundamental Rights have rather little to say about it, though the unjusticiable Directive Principles are copiously eloquent on the subject. We shall return to this.
The next three clauses of this brief Preamble the operative heart of the matter are inspiring and disappointing, all at once. The three terms governing these clauses Liberty, Equality, and Fraternity are of course a familiar phrase from the Enlightenment political philosophy and the French Revolution. Yet, the real meaning of each term is diluted in its definition. The most disappointing is the definition of Equality as of status and of opportunity. What happens, one wonders, to Rousseaus formidable injunction, already in the late 18th century, that those who are not equal in their access to material goods can never be equal in their access to the law, which Marxist theory extended to mean that those who are not equal in their access to material goods cannot be equal in their access to opportunity?
Equally disheartening is the definition of Fraternity simply as dignity of the individual and unity of the nation (replaced with unity and integrity of the nation by later amendment). In its original Enlightenment formulation, Fraternity had meant, first of all, fraternity among people of different religious denominations in a Europe that had been riven by religious wars between Catholics and Protestants. The more radical interpretations were to suggest that fraternity among people was incompatible with acute class conflicts as well.
Fraternity, in other words, presumed that unity of the nation could not be obtained if religio-communal divisions were not overcome and class antagonisms were not bridged. Not to have picked up that meaning of fraternity in a country that had itself come into being so recently as a result not only of independence from colonialism but also of a religiously based Partition is at least very strange. Reducing Fraternity to dignity of the individual evades questions of religious strife, caste conflict and class polarisation. We can only surmise that the framers of this clause were self-divided, between the Enlightenment radicalism of the continental kind, towards which they were gesturing, and the Anglo-Saxon traditions of individualism, of which they themselves were the product.
Finally, we might as well return to the very first line of the Preamble and think a little more of the word Sovereign. That the country had so recently arisen out of colonial subjection explains why it is the Republic that is said to be sovereign. But where does this sovereignty actually reside in the long run, and who exercises it?
In India, the Republic arose out of an anti-colonial mass movement, if not exactly a revolution. The fact that it was a mass movement that overthrew colonial autocracy and replaced it with universal suffrage clearly indicates that sovereignty must reside with the people themselves, who then provisionally delegate the effective exercise of it to one or another combination of legislators for a definite period of time.
The fundamental aspect of that mass movement, nevertheless, was that it was anti-colonial. So, in this case, sovereignty was not only a matter of republican self-definition but also, crucially, defence of that hard won independence in the nations external relations. Indian freedom had come at a historical juncture when the colonial system was getting dissolved across Asia and Africa, and imperialism was entering a new phase of a global empire of capital, led now by the United States, but one that functioned without colonies. This imperialism was, of course, challenged on its margins by a variety of national liberation movements and, more frontally, by the bloc of socialist countries even though those countries were economically, technologically and militarily much weaker than the advanced capitalist West. What was Indias place in this contradictory world system?
Nehrus initial response was to support the national liberation movements, stay away from multilateral military alliances, adopt protectionist policies and what came to be called a socialistic pattern in domestic economy, but also build bridges toward the West. So, he retained Mountbatten as Governor-General, took India into the British Commonwealth and sought good relations with the United States as a desirable source of technology and finance. It was in fact the U.S. that spurned him and, in effect, pushed him far closer to the Soviet Union than he had desired.
Gripped by McCarthyist hysteria at home, dominated by the Dulles brothers in its foreign policy, intoxicated by its monopoly of the atom bomb, the U.S. was busily launching the Cold War and an interlocking global system of military alliances (the North Atlantic Treaty Organisation (NATO), the Baghdad Pact, the Southeast Asia Treaty Organisation (SEATO), etc.) with a view to rolling back communism and opening up the entire world for penetration by U.S. capital. In this context, Nehrus independent economic policies were viewed with much suspicion and his friendly overtures were rejected.
It was much to his credit that Nehru responded by expanding his commitment to Non-Alignment and by turning to the Soviet Union as an alternative source of technology and finance, even while he moved vigorously against communists at home, from Telangana to Kerala. Assumption of a leading role in the Non-Aligned Movement was in a sense Indias assertion of its sovereignty in foreign policy. During that whole period, India played a constructive independent role in a variety of armed conflicts from Korea to Vietnam; supported South Africas African National Congress (ANC) against the apartheid regime in South Africa as well as the Palestinian cause against Israel, much to the Wests chagrin. India maintained close relations with independent-minded leaders such as Gamal Abdel Nasser, Soekarno, Patrice Lumumba, Makarios and Marshal Tito; welcomed the Cuban revolution; and aligned itself with progressive forces across the Arab world.
Non-Alignment thus had a positive, progressive content. Staying out of military blocs did not imply neutrality in global affairs or equidistance from the two Great Powers of the time. Between Israel and Palestine, or between the progressive and the monarchical regimes of West Asia, choices were clear-cut. India did not open up its markets to curry favour with the West but cultivated close and extensive relations with the Soviet Union to secure its own technological advance, growth of its industries in the public sector, building up a reasonable degree of military strength and generally an economy that was largely immune to undue imperialist pressure.
During this whole period, the U.S. did remain a pole of attraction. The Sino-Indian conflict of 1962 was used as an alibi to make an opening towards the U.S. in the military field. During the crisis years of the mid-1960s Indira Gandhis government did succumb to U.S. pressure for devaluation of the rupee. The Green Revolution in India did provide U.S. government agencies and agro-corporations the chance to penetrate Indian agriculture and to influence the formulation of economic policies. Much of the elite Indian intelligentsia was punctually trained in Anglo-American institutions of higher learning, thus spreading corresponding mindsets and policy inclinations among the techno-managerial strata at the apex of Indian society and economy. On balance, however, undue Western pressure was resisted and more than two-thirds of the Indian economy remained closed to Western capital and commodities, just as Indias military strategies remained free of any wish to integrate the country into the Wests strategic designs.
Could this stance in defence of Indian sovereignty in foreign affairs be maintained without fundamentally transforming domestic structures? During that whole period, India made tremendous strides in technological research and scientific education at the upper levels, but only at the apex, on top of mass illiteracy and lamentable levels of primary and secondary education. Brisk industrialisation and the elite farmer strategy in agriculture led to great capital formation and generation of wealth, which provided the class basis for the eventual turn to neoliberal policies and massive privatisation, but during that period of protectionism as much as in the more recent period of high rates of gross domestic product (GDP) growth, India the great rising and shining power has remained at the bottom of the world development index, alongside the poorest countries of Sub-Saharan Africa and very much in the company of Pakistan and Bangladesh. Almost half the population is still illiterate, and more than half the worlds blind people reside in todays India.
A question therefore arises: can a starving and illiterate people be in any substantive sense sovereign, the procedural aspects of parliamentary democracy and independence of the judiciary notwithstanding? With respect to the Constitution one can only offer the melancholy judgement that the Sovereign Democratic Republic of India has done reasonably well in terms of implementing the Fundamental Rights but has also, in the same sweep, jettisoned the Directive Principles by and large to the dustbin of history. We do preoccupy ourselves with the liberal-reformist aspects of the Constitution while suppressing its radical promise. No wonder that the present-day liberal intelligentsia, which is both a product and also a beneficiary of this double movement, attaches itself to what are called social movements but not to class politics.
In any predominantly agrarian Third World society, the essential choice is between effective sovereignty of the people the vast majority of whom are the peasantry and the working poor and alignment with imperialism. The fundamental failure of the period that we call Nehruvian was its refusal to carry out revolutionary transformation of the countryside and substantive empowerment of the working classes, which could have been the only possible basis for popular sovereignty. That refusal, or failure, meant that full assimilation into the imperialist system could be postponed but not warded off permanently. The onset of neoliberalism in the last decade of the 20th century was a logical result of that earlier failure. That slow-motion economic integration into the global capitalist economy then paved the way for far-reaching reorientation of foreign policy as a whole, leading eventually to growing military integration as well. We have now reached a point where there appears to be an India-U.S.-Israel axis on one side of Asia and a developing India-U.S.-Japan-Australia axis on the eastern side.
As these more recent orientations and axes take shape, it is now difficult to even remember what India once was and potentially could have been. The Directive Principles in any case make now for a sad and nostalgic reading.