Field of dreams

What is the importance of the Indian constitution? It is true that all constitutions are products of their own histories and the specific circumstances of the societies in which they were germinated. If so, then, isn't each constitution equally unique and specific in its own way? Why should then the Indian Constitution be privileged with compliments such as unique and special?

The journey to the making of the Indian Constitution was neither smooth nor uniform. It was complex, varied, multi-stranded and contested. A large number of ideas, positions and ideals competed with one another to find a significant place in the holy-legal-foundational-axial book containing the collective aspirations of the people of independent India. The Indian Constitution, as it emerged from the three-year-long proceedings of the Constituent Assembly, was much more than simply a book of legal code, or a treatise on Indian politics, or a governing manual for Indian state. It was also a blue-print for the transformation of a large Indian society in a modern direction. One important quality of this blueprint was that it was not created by one or two exceptional minds, but a fairly large number of political leaders chosen indirectly by the people.

The Indian Constitution was a product of many encounters among a large number of ideas and ideals that sometimes clashed with, and sometimes complemented, each other. All of them fed into the Constitution in some way or the other. It was thus founded on multiple ideational sources. For instance, there was the traditional Indian idea of maximum autonomy with least control, which was tremendously enriched by the modern liberal idea of freedom and choice in political and entrepreneurial life with limited governance. The synergy of the two played an important role in curbing the tendency towards absolutisation of state power at the time of Constitution-making.

Not all the ideas complemented each other. Some actually clashed. There was a British colonial idea of gradually preparing the Indian society for constitutional advance so as to prolong the British rule. The idea was to use the façade of constitutionalism which would enable the alien British rule to establish a firm footing on the Indian soil. According to this idea, an illusion of constitutional advance was to be maintained in order to create legitimacy for British rule in India. In the light of this imperative, the British carried out a series of constitutional measures since 1858. Each measure introduced some change, and was an advance over the previous measure. Each was intended to delay or defer the ultimate change from an alien British rule to a representative rule of Indian people.

This British idea of introducing change in order to prevent a larger change came into clash with the Indian idea of greater Indianisation and democratisation of the political structure. The Indian leaders critiqued the British initiatives and took their critique to a new height in the 1920s when they prepared an alternative constitution for India, popularly known as Nehru Report, named after Motilal Nehru, one of the main architects of the Report. Nehru Report was the first serious attempt by Indians to prepare a constitution for India, and it differed from the British initiatives in some crucial respects.

Their ideas combined...

The British had attempted to modernise Indian politics by legitimising and perpetuating differences - particularly along religious lines - in the Indian society. They created democratic openings and separate political domains for Hindus and Muslims. In a way, they created separate and competitive democracies for Hindus and Muslims. They did so by dividing elected candidates, constituencies, and even voters along religious lines. In the British version of democracy, Hindus and Muslims were politically completely segregated from each other and were constituted into separate political domains. The Indian leaders offered a more imaginative system of weightage, safeguards and reservations as against complete political separation between groups and communities. This alternative idea was codified in the Nehru report.

There was thus an interesting encounter between the British idea and the Indian alternative on reservation versus separate electorate, and which of the two was a superior idea. However, the British-Indian debate was conducted over religious communities. It took an interesting turn in the 1930s and manifested itself on the question of caste. This debate was conducted mainly between Gandhi and Ambedkar, two of the greatest leaders of the 20th century. The debate was on how to distribute political power under democracy among groups and communities, but in such a manner so as to not accentuate political divisions among them. This, indeed, was an important question. Indian traditional plurality was of an unequal kind. A small numerical minority of upper caste Hindus had traditionally dominated over a majority of the lower castes and excluded them from social benefits and entitlements. They were able to do it by invoking the sacred authority of religious doctrines. This social domination by the minority, over the majority, on the basis of divine sanctions, was possible at a time and in a society that had not experienced either democracy or secularism. It was also hoped that under modern conditions - engendered by democracy and secularism - such domination and exclusion would be unsustainable. But a delay in the introduction of these two great ideals created doubts in the minds of Indian leaders on how to eliminate social hierarchy, yet maintain unity and diversity. This, really, was the essence of the debate between Gandhi and Ambedkar.

Gandhi believed that it could be done by opting for a democracy in which political representatives would be responsible and accountable to all, irrespective of caste. The burden of responsibility would moderate and dilute the impulse to dominate and exclude. Ambedkar, on the other hand, felt that a system of separate representation - only Dalits representing the Dalits - would create better conditions for justice and would eventually lead to social and political equality.

The two ideas - of separate political representation and accountability, and a system of joint accountability, were prima facie opposed to each other. But each had its merit, and both the ideas eventually found their way into the Constitution, albeit in a modified form.

Perhaps the most important idea in the constitutional journey developed in the 1930s. This was the idea of a constitution to be made, not by the tiny minority of the best minds alone, but by a Constituent Assembly chosen by the people. Jawaharlal Nehru was the main proponent of the idea. He married the constitutional idea with the democratic idea and argued that nothing short of a Constituent Assembly would satisfy the nationalist aspirations for a constitution. The British eventually conceded the demands. It was in 1946 that a Constituent Assembly, elected indirectly though restricted franchise, was created, which started deliberating on what kind of a constitution was best-suited for the Indian people and society. The members debated for over three years - from December 9, 1946 till January 24, 1950 over virtually every aspect of the collective political life of the people. The 12 volumes of the Constituent Assembly Debates, spread over nearly 5,500 pages, are an ample testimony of the kind of challenges that were confronted by the makers of the Indian Constitution.

When the slightly-over 200 members of the newly constituted Constituent Assembly sat down to deliberate, they knew the supreme importance of the task they had been entrusted with. People drawn from different cultures, regions and backgrounds had to create consensus among themselves and prepare a document that would serve as the guiding principle for the future. It was no easy task. The members had to set aside their personal and group interests, their rivalries, ideological predilections, and strive towards general agreement through engaged reasoning.

A large number of contentious issues confronted the members. One of them was the conflict between the modern impulse for equal opportunity and the idea of positive discrimination for those who had been historically discriminated against. This dilemma was obviously most conspicuous on the question of caste and how to deal with it. It was recognised by all that caste as an institution had been a source of great injustice to the lower castes. This injustice had to be removed by working towards the removal of the institution of caste, and by providing safeguards to the victims of caste oppression. However, the dilemma was that the two goals could not be pursued simultaneously.

Ambedkar himself may have experienced this dilemma when, on the one hand, he argued forcefully for the "Annihilation of Caste". But, on the other hand, he also proposed, during the deliberations in the Constituent Assembly that caste be made the criterion for the practice of positive discrimination. On the face of it, the two appeared contradictory: you cannot wish to annihilate caste, while at the same time make it the basis for a whole range of institutional arrangements. Caste could be annihilated when it was removed not simply from the social structure, but also from the minds and the consciousness of the people. But how could it be removed if it became the bedrock of the official policy on the distribution of jobs and other benefits?

This certainly was a huge dilemma. It was simply not possible to wish it away. However, it was addressed by making a distinction between short-term priorities and long-term goals. It was certainly a priority to promote a policy of positive discrimination to compensate for historical wrongs done to the lower castes. It was then hoped that the short-term measures would eventually feed into the long-term goal of the removal of caste from our social life. Whether the short-term measures will feed into the long-term goal, we do not know, and it is too early to conclude either way. For the moment, it does seem that caste-consciousness, instead of diminishing, has shown a revival in recent times with a degree of stridency. However, the resolution of this question lies in the womb of time.

Yet another issue of debate was on the role of the State as the centralised decision-making institution, and the distribution of power between the central government and other federating units. On this issue, the members were pulled in both the unitary and the federal direction. Pressures of national security, imperatives of national unity, and the recent anxieties created by Partition and the making of Pakistan, tilted the balance towards greater centralisation. On the other hand, the impulse of maintaining diversity and the fears of an authoritarian Centre justified the need for a federal framework with enough distribution of power. In the end, a consensus developed through a compromise which created a strong Centre (to maintain security and unity), and also balanced it by vesting enough power in the federating units (to preserve diversity and democracy).

One big question is: how could all this be possible? How was it that the representatives from a traditional, Brahmanical, upper-caste-dominated, male-oriented society were able to rise above their inherited traditional baggage and create a blueprint which contained the possibility of a modern transformation? Some part of the answer has to be found in the very nature of the Indian nationalist movement which created a huge ideational churning during the initial decades of the 20th century. The national movement was not simply a struggle against the alien British imperialism. It was also a great project which mobilised the Indian people and harnessed their creative energies towards a modern direction. The national movement triggered many debates around the nature of the future, which were eventually taken up in a systematic manner by the members of the Constituent Assembly. In this sense, the Constituent Assembly represented more of a continuation and a culmination of the national movement, rather than a separate process altogether. It may be argued that the Indian people and their leaders had begun preparing their constitution much before the convening of the Constituent Assembly. A mammoth transformational experience of the national movement eventually culminated in a transformational document, the Constitution of India.

There is no doubt that the Indian Constitution has withstood the test of time and thus lived up to the expectations of the makers of the Constitution several decades ago. However, one should also remember the Constitution for some crucial omissions and missed opportunities. One such missed opportunity was the question of gender justice. Even though women were granted the equality of citizenship by the Constitution, this equality in a deeply unequal society could only serve to perpetuate inequality. It is truly unfortunate that the principle of positive discrimination, which was applied to the question of caste, was not extended to the question of gender. It turned out to be naive optimism to believe that the creation of equal opportunity would create conditions for gender equality. The great reluctance of our current political class to take up the issue of women's reservation in the parliament is ample testimony that the Constitution makers placed a certain faith in their political successors, which turned out to be completely misplaced. It is undeniable that the Constitution makers made a huge mistake in leaving this question to be settled by the future generation of political leaders. The failure to institute a proper mechanism to ensure gender justice must be ranked as one of the great failures on the part of the Constitution makers.

The failures and silences notwithstanding, it has to be recognised that the period 1946-50 is truly an axial period of our constitutional history. It was during this period that around 200 representatives of the Indian people got together to create history. By any reckoning, they were normal, unexceptional people – mostly middle-aged men, drawn from traditional backgrounds, and from the privileged upper strata of society. Nonetheless, they knew that they had been entrusted with a great task. And, to paraphrase Nehru, the greatness of the task was so overwhelming that it cast its shadow on them and, in the process, they also became great. They transcended their group interests, class location, inherited privileges, and got involved in creating a blueprint for India's modern transformation. They gave themselves a project – how to transform a large  (ly?) traditional society with multiple diversities into a modern society, without endangering the diversity, but by removing its undesirable, hierarchical aspects. In other words, they took up the challenge of how to retain the positive elements of Indian traditions and yet create a transformational pull in a modern direction. There is no doubt that they were largely successful in preparing the road map. It is now for the people of India and their representatives to work towards translating that road map into reality.

(The writer is a historian and is currently the pro-vice-chancellor of Ambedkar University Delhi)