Did the people have a say in the making of the Constitution? A new book finds out
‘Assembling India’s Constitution’, a new book based on archival research, offers an original take on the framing of the Constitution as a participatory process
In 2020, I was part of a constitutional challenge to the government’s plans to “redevelop" the Central Vista in New Delhi. One of the arguments that we made was that these plans had been formulated—and were now proposed to be implemented—without any public participation. Public participation was a fundamental constitutional value, not just in India, but across the world, where it was increasingly coming to be understood that the relationship between the people and their government was not simply limited to the periodic casting of the vote; rather, democratic accountability required the continuing participation of the people in decisions that impacted them. The redevelopment of the nation’s primary democratic symbol—we argued—was certainly a decision that fell within such a category.
In choosing to uphold the government’s redevelopment plan, the Supreme Court observed that the founders of the Indian Constitution had chosen a model of “representative democracy" rather than “direct democracy": that is, one where the people delegated the task of governance to their representatives with the only constitutionally mandated form of accountability coming through the cycle of elections. This is what—the court said—distinguished the Indian Constitution from its counterparts in South Africa and Kenya, which did explicitly enshrine public participation rights when it came to law-making and executive action.
I have no reason to believe that a better argument would necessarily have changed the court’s decision. However, if Rohit De and Ornit Shani’s book, Assembling India’s Constitution, had been published at the time, we would have definitely had a stronger argument, and a stronger critique of the court’s eventual dismissal of the right to public participation as a constitutional value.
Assembling India’s Constitution is a work of historical reconstruction. Its authors take on the near-uncontested claim during the previous 75 years, that the making of the Constitution was a top-down affair, guided by elite figures in the Constituent Assembly. From the time Granville Austin wrote his first and canonical book, The Indian Constitution: Cornerstone of a Nation (1966), about the framing of the Constitution, this consensus has held. It has been held both among scholars who have seen it as a largely positive thing (elite consensus was the only way that a Constitution for India could have been drafted in 1947), and a negative thing (by virtue of its framing, the Indian Constitution has always lacked democratic legitimacy in some fundamental way).
This consensus has held primarily because the materials that scholars have consulted (this author included) have been limited to the proceedings of the Constituent Assembly, the magisterial six-volume collection by B. Shiva Rao that provides certain “select" documents associated with the Assembly (the hint is in the word “select"), and a few other contemporaneous documents. Assembling India’s Constitution departs from this consensus on the strength of archival research: its authors make the claim that the process of Constitution-making was deeply democratic, and involved a significantly broader and deeper manner of public participation than what has hitherto been known.
This argument is developed through six chapters, where the authors examine (among other things) the correspondence sent to the Constituent Assembly from across the country, and at various stages of the process. These constituencies include, of course, the ordinary men and women of the country, but they also include a range of actors that we might not have associated with the process of Constitution-making: from student groups to the colonial judiciary.
In three of the most fascinating segments of the book, the authors examine claims (including “model constitutions") that are advanced from the princely states (and especially Manipur), from the colonial legislatures in the provinces, and from the tribes. In another segment, the authors discuss how the Constitution was “taken on tour" in various “far-flung" parts of the country: where people could not access the Assembly, the Assembly went to them. Just about everyone had something to say about the Constitution—and, what is even more striking, the secretariat of the Constituent Assembly had a process through which such correspondence was catalogued, filed and actually placed before members of the Constituent Assembly for their consideration.
Assembling India’s Constitution succeeds on multiple levels. It succeeds as a work of history. It succeeds in inaugurating a new account of the framing of India’s Constitution. And it succeeds in its central argument, which is that there was both broad and deep public participation in the framing of India’s Constitution.
Beyond that, however, the following question arises: what, then, follows from this? As a practising lawyer as well as a writer on the Indian Constitution, for me, this question takes two forms. First, what—if anything—does this mean for interpreting the Constitution today? The writers are clear that their argument is not that the voluminous correspondence that came from the people of India to the Constituent Assembly actually had a tangible impact upon the language of the final document. In that way, the people did participate, but it is unclear whether—and to what extent—they were heard.
This distinguishes the process of the framing of India’s Constitution from the more famous participation-oriented stories of constitutional drafting. For example, the framing of Kenya’s 2010 Constitution involved a formal process of public hearings and consultations across the length and breadth of Kenya. This was followed by a voluminous report that summarised the inputs that had come in from the people, both topic-wise and on the basis of geography. The impact of these inputs can then be traced through how the language of the draft changed in each iteration, often in direct response to public suggestion. The process of drafting, thus, was a conversation.
In the Indian process, however, other than the acknowledgements from the secretariat of the Constituent Assembly, it appears to (largely) be a monologue, as one of the conversational partners—the one that held all the power—remained silent. How, then, can we harness this rich history of participation into understanding how we should read the Constitution today? Can we?
The second part of the question is: what has been the impact of this history having been erased from our public and legal culture for the last 75 years? At one level, the answer is simple: it has distorted our debates about the Constitution. At the level of constitutional practice, it has had another distorting effect: it has led to judgements like Central Vista, where our courts reach facile conclusions about how public participation has never been a fundamental constitutional value, and cannot inform constitutional adjudication today. This, once again, is in stark contrast to jurisdictions like Kenya, where the history of public participation is so woven into public culture, that no judge or court can ignore it when deciding cases on constitutional validity.
It is here that Assembling India’s Constitution might be of use to lawyers in court. While the Constitution does not explicitly guarantee a right to public participation, there are laws—such as the Forest Rights Act—which do so. Armed with De and Shani’s historical arguments, the case for public participation being an enduring constitutional value, right from the beginning of our constitutional journey, can help in providing such laws with a constitutional foundation, and in pushing back against their dilution or evisceration. As with the Central Vista case, of course, there is no guarantee that the quality of constitutional argumentation will change constitutional outcomes, but it never hurts to have a string in the bow.
Whether constitutional lawyer, historian, or simply an interested citizen, Assembling India’s Constitution is an original work of constitutional history and imagination, and one that rewards a close and careful study.
Gautam Bhatia is a Delhi-based advocate and legal scholar.
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