Our ‘un-Indian’ Constitution

Constitutional Morality

Constitutions endure for a variety of reasons. Some endure because of a deep political consensus. In some societies, the sheer balance of power amongst different political groups makes it difficult for any group to overthrow a constitutional settlement. In some cases, constitutions provide an artful settlement that does not deeply threaten the power of existing elites, but nevertheless provides a mode of incorporating the aspirations of previously excluded groups. While it is hard, not simply for methodological reasons, to determine what has enabled the endurance of India’s Constitution, it is worth reflecting on how the project of constitutionalism was historically understood.

What does it mean for a society to give allegiance to a constitution? India’s Constitution bore the imprint of a long nationalist movement that made choices that have shaped its trajectory. The first and most significant choice was the idea of constitutionalism itself. The Indian nationalist movement, while radical in its normative hopes, was self-consciously a constitutional movement. In its early phases, it spoke the language of English law. Even when it acquired, under Gandhi, the character of a mass movement, it was anti-revolutionary. It placed a premium on eschewing violence as a means of overturning social order or advancing political goals. India has been subject to occasional violent political movements, from various secessionist movements to Maoism. But violent revolutionary movements have found it difficult to gain mainstream legitimacy. In that sense, even if not expressed in the formal language of law, a grammar of constitutionalism has marked India’s mainstream political choices. Although the idea of non-violence has been associated with Gandhi’s legacy, its greatest political practitioners have been India’s most marginalised groups. Dalits, who were India’s most unimaginably oppressed social groups, with most reason to resent the structural violence of India’s inherited social and political order, have in a sense been at the forefront of owning a constitutional culture. This is in part due to the fact that B.R. Ambedkar, now iconised as one of the architects of the Indian Constitution, was Dalit; this is partly due to the fact that the Constitution gave political representation and representation in public jobs to Dalits, and partly due to the fact that the Constitution saw itself as a charter of social reform. But given the scale of social violence that Dalits suffered, the degree to which they see the Constitution as their own is remarkable. Constitutionalism at its core signifies a politics of restraint.

The Cosmopolitan Constitution

The Indian Constitution is, in a significant sense, a cosmopolitan constitution. It was a cosmopolitan constitution in its fidelity to the universal principles of liberty, equality, and fraternity. But it is also a cosmopolitan constitution in a second sense. Its text and principles, its values and its jurisprudence, have been situated at the major cross-currents of global constitutional law.

The Indian Constitution, when it was promulgated, laboured under the charge of being un-Indian. In the closing debates of the Constituent Assembly, we notice the criticism that the Constitution bore little resemblance to Indian ways of thinking about the law. It jettisoned even the political theory of the man from whom so much of the nationalist movement drew its authority: Gandhi. Instead, it represented an amalgam of many sources and traditions. For instance, it was profoundly shaped by the system of English Common Law that had effectively been institutionalised in India. It bore a deep imprint of the Government of India Act 1935. It borrowed Directive Principles of State Policy from the Irish Constitution, and was influenced by the American debates over due process—all made to serve distinctly Indian political challenges. Even though the Constitution had the political authority of the nationalist movement behind it, it ran the risk of being vulnerable to two charges. The practical accusation was that it was not a constitution suited to India’s needs. The theoretical charge was that the Constitution represented a kind of derivative eclecticism.

It is for this reason that Indian constitutional law and Indian courts are at the cross-currents of almost all major legal debates. They are not constrained by the sources they cite: they can roam freely over American, English, South African, Israeli, or even Pakistani jurisprudence. They can freely read international law principles into the Constitution. They can read the American First Amendment into the Indian Constitution. While the quality of the reasoning can be disputed in individual cases, there is no question that to enter the world of Indian constitutional law is not to enter into a world of parochial concerns, derived from the peculiarities of a political tradition; it is to enter a global conversation on law, norms, values, and institutional choices.

This conversation bears the imprint of almost all layers of constitutional transformation. Like many constitutions, it concerns itself with the limits and constraints on public power, the ways in which the sovereignty of the people can be preserved against various usurpations. It concerns itself with the recognition and protection of human rights. Indian constitutional law innovated in the expansion of these rights, to make social and economic rights justiciable. But it also bears the imprint of complex debates over development and the place of property rights in that process. This is a body of constitutional law that has also allowed for a transition from a state-led, redistributive model of economic development to a more liberalised and globalised economy. It has dealt with the exigencies of a complex regulatory state and the tensions between legislative authority and delegation that a modern administrative state imposes upon politics.

In any constitutional tradition there is a tension between the backward- and forward-looking aspects of constitutional law. The backward-looking aspects refer to constitutional texts, founders, and intentions. The forward-looking aspects refer to an ongoing conversation on the nature of social contract and the nature of social justice. Even the most entrenched constitution requires relegitimation in the light of changing circumstances, new challenges, and changing social values. In any constitutional tradition, there is a tension in how law positions itself between its authority, derived from the past, and its utility for the future. Indian constitutional law is fascinating for the way in which the backward-looking aspects of the law—fidelity to a text, the citation of precedent, and the invocation of the spirit of the founders—are invoked in creative reinterpretations of the Constitution to make it serve changing needs. The manner in which this tension is negotiated provides an instructive case study of the relationship between constitutional law and political legitimation. It will hopefully invite scholars to consider how constitutional law needs a theory of legitimation that does not reduce it to fidelity to a text or inherited authority on the one hand, or an exogenously given moral and political theory on the other. It will demonstrate how constitutional law operates as a point where the authority of the past and the challenges of the future meet, in the context of an ongoing democratic conversation. In this sense, constitutional law is not just a doctrine; it is a site for the mediation of different tensions and conflict.

Excerpted with permission from Oxford University Press. The book will be released on 20 April.