Democratic constitutionalism in India
TO transform themselves from a colony into a democracy was the inspiration of many Indians struggling for independence; so, once independence came, they became engaged in writing for themselves a democratic constitution. The democratic credentials of the Indian Constitution, during the years of its creation, were discussed in the following terms: first, was the Constituent Assembly framing this constitution representative enough so that the people of India could be said to be expressing their will through the Constituent Assembly? Were all sections of Indian society – religious groups, ethnic communities, economic classes, functional groups – adequately represented in the Constituent Assembly?
The leaders of India’s freedom struggle had refused to allow the British to write their new constitution and had insisted that if India was to become a democracy, its constitution had to be written by the Indians themselves.1 The same logic required that the Constituent Assembly be a place where all kinds of Indians could figuratively gather.
No wonder then, the claim was repeatedly made on the floor of the assembly that there were members speaking there who represented the Sikhs, the Muslims, the adivasis, the Hindus, the Anglo-Indians, the Gurkhas, the Christians, the agriculturalists, the poor, the Scheduled Castes, the mercantile community, and so on. In most of these cases, the claim of representation was based on the representative himself being a Gurkha, an adivasi, a Parsi, a businessman, or a farmer. Regretting the absence of the members of the Muslim League, on 13 December 1946, while moving the Objectives Resolution, Nehru stated that, ‘We should have liked to associate with ourselves as many people, as many representatives from the different parts of India and different groups as possible.’2
When the Advisory Committee of the Constituent Assembly, a most important committee because it was to ‘deal with the rights of minorities, the rights of citizens, and with questions relating to the administration of Tribal and Excluded and Partially Excluded Areas’, was formed on 24 January 1947, its initial membership of 50 was tabled as including three representatives of the Parsis, three of the Anglo-Indians, four of the Christians, six of the Sikhs, seven of the Scheduled or Depressed Classes, and so on. If we look at those 50 names we can find three Parsi names, six Sikh names and seven or eight Christian names.3 There were to be seven representatives of the Hindus of the five Muslim majority provinces, and seven representatives of the Muslims of the seven Hindu majority provinces; one would not be surprised to find Hindus and Muslims performing this function of representation respectively.
Was this merely a way of responding to the charge levelled in the British Parliament against the Constituent Assembly for being just a collection of upper caste Hindus? If the British could not write a constitution for independent India, how could a group consisting mainly of upper caste Hindus represent India’s diverse people? Representation could only be said to be possible if the membership of the Constituent Assembly, and of its committees, mirrored the diversity of India: this position on representation was taken up on the very second day of the assembly meeting, on 10 December 1946, when the first committee of the assembly, the Committee for the Rules of Procedure of the Assembly, was being formed.
Harnam Singh objected that using the mechanism of proportional representation and the single transferable vote to fill the 15 positions on the committee could not guarantee the representation of the smaller minorities. Since most members preferred that the Rules of Procedure Committee should frame one set of rules for the assembly and every one of its sections and committees, so that ‘no part nor any section of it or any committee of it could function independently or frame its own rules’, it was essential that this committee contain all the different voices so that the common rules formulated would be fair for varied interests.
The assembly accepted the two amendments to the resolution on the Rules of Procedure Committee, one which proposed that all parts of the assembly would follow the same set of rules, and the other that only 10 members would be chosen by proportional representation, and the chairman of the committee could co-opt up to five members from the minorities to be part of the committee. This motif of insisting on a common framework, and ensuring the inclusiveness of this common framework by bringing in many different voices in the making of the framework, reappears again and again in the debates of the assembly.
The question of representation never went away. In November 1948, two years into the debates, the proposal to discuss the draft constitution in the assembly was challenged by Damodar Swarup Seth on the grounds that the Constituent Assembly was not representative enough to consider the draft constitution and a new Constituent Assembly should be elected, on the basis of a universal adult franchise, for that purpose. We can see that the Constituent Assembly was haunted by the problem of representation from the beginning to the end. How could a body, accused constantly of being a non-representative body, lay down the right principles of representation for a democratic India? The assembly’s repeated attempts to legitimize itself by affirming that it did represent all sections of India since it included many different kinds of Indians left a legacy of the understanding of democratic representation as being inclusive of many different groups.
The constitution would only be democratic if the assembly framing it could be said to represent the will of the different sections that made up the people of India; in another sense, for the assembly members, it would be democratic only if it did not represent many aspects of India. The second criterion for ensuring that the new constitution would be a democratic one was that it be a ‘transformative constitution’. In order for India to become a democracy it needed not a ‘preservative constitution’, ‘simply some kind of statutory codification of an acceptable or legitimate past’, but a ‘transformative constitution’, an attempt ‘not to preserve an idealized past but to point the way toward an ideal future.’4
Having gained their freedom from the British, Indians could now give shape or form to this freedom; they had to collectively decide as to how to shape their freedom. As K.M. Panikkar said, the members were engaged in ‘the great task of organizing India’s freedom.’5 The constitution was supposed to bring about a revolution. ‘We are told that we cannot effect revolutionary changes through peaceful methods, through negotiation and discussion in constituent assemblies… We wish to bring about a fundamental alteration in the structure of Indian society,’6 said Radhakrishnan.
Democracy required not only that the constitution be based on the principle of ‘one man, one vote’, but also on the more fundamental principle of ‘one man, one value’. Giving every individual the right to vote was not enough to establish the equality which was required by a democracy. This could only come about through a social and economic change or revolution which the constitution was to effect. The constitution was the political instrument which was to be used to bring about social change. It represented the political will of Indians to change themselves. Only if the different kinds of Indians got together could the political will emerge to write a transformative constitution.
The constitution was to ensure that the same Indian people whose will it was to express changed themselves in the direction of an egalitarian society. The constitution was not only to be an expression of their will, but of their will to change themselves, and also the instrument by which they changed themselves. When the will to be expressed is a will which wants to bring about change in the self, a will to create something new, such a will can be characterized as a will-in-the-making, which is why constitution making is characterized sometimes as revolutionary. It is a harnessing of collective power to give oneself a new start.
‘Constitutional morality is not a natural sentiment. It has to be cultivated… Our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil, which is essentially undemocratic.’7 This is Ambedkar moving the draft constitution in the assembly on 4 November 1948. A few days later, on 19 November 1948, Ambedkar says, ‘While we have established political democracy it is also the desire that we should lay down as our ideal economic democracy… We do not want merely to lay down a mechanism to enable people to come and capture power. The constitution also wishes to lay down an ideal before those who would be forming the government. That ideal is economic democracy, whereby so far as I am concerned, I understand to mean, "one man, one value".’8 Much earlier, in his Memorandum and Draft Articles on the Rights of States and Minorities of 24 March 1947, to the Fundamental Rights subcommittee, Ambedkar had written, ‘The soul of democracy is the doctrine of one man, one value.’9 To establish or create a society in which each person was valued equally was only possible if all kinds of Indians, including those Indians who knew the experience of being treated unequally, took part in this creation.
Both these aspects, constantly harping on the presence of different voices in the Constituent Assembly in order to legitimize it, and so being led to a conception of representation in terms of the presence of different voices, as well as the idea that through the constitution, a new society and polity would be created in India, led several members to point out that democracy could not be equated with majoritarianism. Democracy is government by deliberation, a member said. Deliberation only takes place when there are opposing points of view, so democracy requires a vibrant opposition. Opposition can only be vibrant when political rights such as the right to freedom of speech and expression, freedom of the press, secrecy of correspondence, and freedom of association, are protected.
One member also demanded a constitutional position for the leader of the opposition. Other members pointed to the recent experience of Europe to make the point that without a strong opposition democracy could be reduced to fascism. In a democracy, political minorities must exist. While framing a democratic constitution, the members must not only be concerned with protecting religious or linguistic minorities, but also political minorities, that is, those who differed with the majority about public decisions: ‘For the preservation of democracy in India it is necessary that you must have a system whereby an opposition may be allowed to come in.’10 The same argument had been made earlier in a discussion of the report of the Fundamental Rights subcommittee: ‘If political opposition is curtailed how can we assume that democracy will develop? Without political opposition there cannot be democracy.’11
Democracy could not refer to a system based just on the aggregation of given preferences: the point of the democratic practices of discussion and deliberation between opposing voices was to keep the possibility open for a change in those preferences. It was through the constitution, through constitutional protection for political rights such as freedom of speech, of the press, and of association, or even more directly, through a position for the leader of the opposition in the constitution, that democracy would be established in India. On similar lines, many members of the assembly let their disagreement be known when it was proposed to give the President of the house the power to disallow certain amendments to be moved to the draft constitution on the grounds that they were merely verbal or formal. ‘Democracy requires that every amendment here, every amendment tabled, must be discussed in all its aspects.’12
These oppositional voices in the assembly were sometimes sought to be silenced by the threat, also made on the floor the assembly, that it was unwise to antagonize the majority because ultimately, in a democracy, decisions are made by majority rule. After all the airing of differences, all the debate and deliberation, decisions would still be made by the rule of the majority. As Nehru said, ‘If it is a democracy, in the long run or in the short run, it is the will of the majority that will prevail.’13 In spite of this threat, we find some members insisting that a constitution written with the participation of many different voices, and a constitution which attempted to ensure that future legislation would be framed with the participation of different voices, could establish a democracy in India which did not suffer from the ills of majori-tarianism.
If the end of the Indian Constitution was a revolutionary change, surely that included the transformation of the majority; if the framing of the constitution was a process of the coming together of society in its political form to give itself a new direction, the impetus for that change could only come from a gathering together of different and oppositional voices. To establish a democratic frame, the constitution had to work in oppositional voices. Rajendra Prasad’s advice at the beginning of the proceedings that in a democracy, ‘the State is not a sort of undesirable excrescence resulting from the surrender of individual liberty; the State is a natural outcome of the nature of man who has to perfect himself in social and community life, with a necessary central authority,’14 did not stop the members of the assembly from discussing the use of the constitution to prevent India’s democracy from turning into a majoritarian state.
Some democratic theorists, discussing the role of constitutions in the older democracies of Britain and America, have argued that the idea of constitutional restraints in the name of anti-majoritarianism reflects a long-standing fear of the ‘hasty, greedy, and intemperate courses on which the masses are likely to embark if they ever get power in their hands.’15 In the Indian case too, it was one thing to agree that in a democracy policy constraints could not be pre-imposed on a government, it was another to argue that any constraining of a democratic government through a constitution went against the spirit of democracy.
During the debates in the Indian Constituent Assembly, some members did point out that economic policy could not be made part of the provisions of the constitution because that would constrain the will of the future government. The purpose of the constitution was to establish democracy – both political and economic democracy, but there were many different possible routes to economic democracy – individualism, socialism and communism – and it would not be democratic to compel all future governments towards one way. Constraining the political will of the future in this way would not be democratic.
It is surprising to find Ambedkar saying this because in an earlier note to the Fundamental Rights Subcommittee, he had proposed to ‘establish State Socialism by the law of the constitution and thus make it unalterable by any act of the Legislature and the Executive.’16 According to him, ‘…it was equally essential to prescribe the shape and form of the economic structure of society, if democracy is to live up to its principle of one man, one value. Time has come to take a bold step and define both the economic structure as well as the political structure of society by the law of the constitution.’17
By 1948 the position was that in a democracy policy constraints could not be placed on an elected legislature. Could any kind of constraints, if not policy constraints, be placed on the legislative will in a democracy? Let us look at the discussion around the right to life and personal liberty in the assembly. On 6 December 1948, member after member disagreed with the Drafting Committee’s replacement of the ‘due process’ clause by the ‘procedure according to law’ clause in Article 15. The Drafting Committee had taken Article 15 as passed by the Constituent Assembly – ‘No person shall be deprived of his life or liberty without due process of law’ – and changed it to ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’
Many members including Pandit Thakur Dass Bhargava, Krishna Chandra Sharma, H.V. Pataskar, K.M. Munshi and Z.A. Lari demanded that the phrase ‘without due process of law’ be reinserted in Article 15. Thakur Dass Bhargava said that it was necessary that this be done in order to ‘introduce into the constitution principles which the legislature will in future be unable to contravene.’18 K.M. Munshi pointed out, ‘We want to set up a democracy; the House has said it over and over again; and the essence of democracy is that a balance must be struck between individual liberty on the one hand and social control on the other. We must not forget that the majority in a legislature is more anxious to establish social control than to serve individual liberty.’19
Given that it was the liberty of one’s person that was in question, and not, for example, one’s liberty with respect to property, the due process clause was necessary. This implied that when it was the right to property that was at issue, it was reasonable to leave that in the public or political domain. After all, that was the meaning of ‘procedure established by law’: the right to property could be modified by laws passed by a majority, as did happen in the recent history of independent India.
Democracy required that only those things be taken out of the political domain, which, by being protected as rights, actually strengthen the political domain. Such rights included not only the right to life and personal liberty but specially the political rights – the rights to freedom of speech, assembly and association. Such rights would ensure that the political level would remain vibrant, and not be captured by one party or the state. However, if Indian democracy required a strong political domain because this was a society moving towards far reaching change, which would involve much contestation, then other measures which could strengthen the political domain while at the same time avoiding the ills of majoritarianism, were also to be considered.
Some members insisted that when the sweep of political will was to be left as wide as possible in a democracy, then it was essential that different groups be present in the construction of this political will. These members demanded guaranteed political representation for Scheduled Castes and Tribes, and for Muslims, Sikhs and Christians. The presence of different voices in the constitution of political will would ensure that the interests of smaller groups were not overridden. When J.J. Nichols stated that ‘if these rights are safeguarded in the manner in which they are sought to be safeguarded by the constitution, if the fundamental rights, including as they do minority rights, are assured in an absolutely indubitable manner, no kind of political safeguards will be necessary for us,’20 he was arguing the same point, from an opposite direction. If minority interests were protected by removing them, in the form of rights, from the ambit of the political will, there was no need for political safeguards, that is, for guaranteed political representation in the legislature for minority groups.
In the discussion between some of the members, we see developing a non-majoritarian conception of democracy, yet one which gave pride of place to the political. This conception did not want to constrict the political because it saw democracy as an instrument of change. Yet, it was wary that giving so much space to the political would lead to a slide into majoritarianism. To avoid that, the members debated the remedy of rights versus the remedy of ensuring the participation of different voices. But if rights set up enclaves where political will cannot enter, the members were also aware that sectional representation contained the possibility of each group focusing on its own separate interest.
Even as early as the discussions at the subcommittee stage, some members had insisted that the strengthening of the new identity of being a citizen of India required that other markers of identity such as gender, religion, caste or region be made less significant. Any kind of reservations, whether in legislative bodies or in the services, would lead to the fracturing of political space. Voicing her dissent to some of the provisions of the Minorities Subcommittee, Rajkumari Amrit Kaur, for example, held that ‘anything in the nature of privileges for any special class or section of society is wrong in principle’ and a throwback to ‘old policies which have tended to accentuate the communal problems [and which] must be abandoned.’21
It was understood that the constitution was attempting to ‘constitute the demos and provide a framework for its establishment and evolution.’ The constitution was an attempt to guide the evolution of Indians into willing themselves to be equal members of a wider public. At the same time as it was being pointed out that the Constituent Assembly contained representatives of the Hindus, adivasis, Sikhs, Gurkhas and so on, it was also being said that these representatives must not limit themselves to sectional interests but be oriented to a common interest.
After desiring the participation of different groups, Nehru clarified that, ‘The future of India that we have envisaged is not confined to any group or section or province… we are here not to function for one party or one group but always to think of India as a whole.’22 That is why, in so far as reserved constituencies were concerned, if we find some members insisting that no candidate be considered elected from such a constituency until he or she obtained a certain percentage of the vote from the community in whose name the constituency was reserved, we also find other members holding that such members could only stand elected, if they obtained a certain percentage of the vote from the members of the other communities in that constituency.
Holding on to an expansive idea of democracy, the members of the Constituent Assembly saw the constitution as an aspect of democratic transformation. Engaging in democratic transformation implied a conception of a political will ranging widely over a public domain. Many members spoke against both the restriction of the public domain as well as against the fracturing of public space, and what we see in the Constituent Assembly is members struggling with how to achieve the principle of ‘one person, one value’ not merely by a listing of rights but by the setting up of such a structure of government that would forestall those in power from treating some as having more value than others.
1. ‘The Congress does not and will not recognize the right of any external power or authority to dictate the political and economic structure of India… The Indian people can only recognize a constitutional structure which has been framed by them…’ See the Faizpur Congress Resolutions, December 1936, in B. Shiva Rao (ed.), The Framing of India’s Constitution, Select Documents, Vol.1. Universal Law Publishing Co., Delhi, 2006, (1967), p. 82.
2. Constituent Assembly of India, Vol. I. http: //parliamentofindia.nic.in/ls/debates/vol1p5.htm
3. Constituent Assembly of India, Vol. II. http://parliamentofindia.nic.in/ls/debates/vol2p4.htm
4. C.R. Sunstein, Designing Democracy – What Constitutions Do. Oxford University Press, Oxford, 2001, p. 68.
5. Constituent Assembly of India, Vol. III. http://parliamentofindia.nic.in/ls/debates/vol3p1.htm
6. Constituent Assembly of India, Vol. II. http://parliamentofindia.nic.in//ls/debates/vol2p1.htm
7. Constituent Assembly of India, Vol. VII. http://parliamentofindia.nic.in/ls/debates/vol7p1b.htm
8. Constituent Assembly of India, Vol. VII. http://parliamentofindia.nic.in/ls/debates/vol7p.9.htm
9. B. Shiva Rao, The Framing of India’s Constitution, Select Documents, Vol. 2. Universal Law Publishing Co, Delhi, 2006 (1967), p. 102.
10. Constituent Assembly of India, Vol. VII. http://parliamentofindia.nic.in/ls/debates/vol7p4a.htm
12. Constituent Assembly of India, Vol. VII. http://parliamentofindia.nic.in/ls/debates/vol7p14.htm
13. Constituent Assembly of India, Vol. VIII.
14. Constituent Assembly of India, Vol. II. http://parliamentofindia/nic/in/ls/debates/vol2p2.htm
15. J. Waldron, ‘Precommitment and Disagreement’ in L. Alexander (ed.), Constitutionalism – Philosophical Foundations. Cambridge University Press, Cambridge, 1998, p. 282.
16. B. Shiva Rao, The Framing of India’s Constitution, Select Documents, Vol. 2, op. cit., p. 99.
17. B. Shiva Rao, The Framing of India’s Constitution, Select Documents, Vol. 2, op. cit., p. 102.
18. Constituent Assembly of India, Vol. VII. http://parliamentofindia.nic.in/ls/debates/vol7p20b.htm
20. Constituent Assembly of India, Vol. VII. http://parliamentofindia.nic.in/ls/debates/vol7p23.htm
21. B. Shiva Rao, The Framing of India’s Constitution, Select Documents, Vol. 2, op. cit., pp. 401-402.
22. Constituent Assembly of India, Vol. I. http://parliamentofindia/nic/in/ls/debates/vol1p5.htm