The Transformative Constitution Read online

  So far, so familiar. This is the story of constitution-making the world over, most famously told through the American Revolution. Yet, that was not all. The Indian Constitution was transformative in a second sense. It sought a thoroughgoing ‘reconstruction of State and society itself’.43 In its horizontal—or comprehensive—transformative avatar, the Constitution recognized that the State had never been the only locus of concentrated power in Indian society. Unlike the modern West, which understood sovereignty in centralized and unitary terms, Indian society had always been characterised by ‘layered sovereignty’.44 Hierarchies were established and maintained by ‘self-regulating communities’ taking multifarious forms (primarily, caste), and the State had ‘rather limited powers to interfere with [a] social segment’s internal organisation’.45

  Consequently, in India, freedom and equality were suffocated not merely by ‘a despotic government, but also by embodied traditional authority and … domestic or religious practices’.46 The freedom struggle that culminated in the framing of the Constitution was at one end a movement for liberation from political servitude, but it was equally ‘a struggle for self-determination against multi-layered oppressive structures’ of the feudal order as well as the structures that constituted colonial domination.47 This story is reflected in the Constitution’s horizontal rights provisions (i.e., fundamental rights enforceable against groups, communities and private parties), a rarity in constitutions even today, let alone in 1950: Article 15(2), which bans discrimination in access to restaurants and roads, Article 17, which abolishes untouchability, and Article 23, which proscribes forced labour.

  To defend this vision of the transformative Constitution, it is imperative to go beyond the sterile and deadlocked academic debates surrounding the bare text of the document, and (some of) the legal instruments that preceded it. The words of the Constitution, I suggest, come alive only in the context of a broader canon. For example, we cannot understand the constitutional guarantee of equal protection of laws without taking into account the ‘enormously influential’48 Samya (Equality) (1879), Bankim Chandra Chattopadhyay’s nineteenth-century political treatise on equality. We cannot understand the Constitution’s repudiation of gender discrimination without listening to the voices of the women who used the language of equal rights to publicly intervene in the nineteenth-century debates surrounding the restitution of conjugal rights, the twentieth-century controversies over the Child Marriage Bill, and the equally public struggle of the suffrage movement. It is only when we read the speeches of Congress presidents Motilal Nehru and C.R. Das, savaging the colonial regime’s arbitrary executive authority, that the austere right to ‘life and personal liberty’ will begin to speak to us. It is the writings of B.R. Ambedkar, from his Report to the Southborough Committee to Annihilation of Caste and the story of the Mahad Satyagraha, that will allow us to understand how the Constitution was committed to erasing social and economic hierarchies. And it is Gandhi’s uncompromising approach to civil rights and his defence of all speech—even ‘revolutionary speech’—that will enable us to understand the transformative potential in the simple words: ‘all citizens shall have the right to freedom of speech and expression’.49

  That is just the beginning. For more than a hundred years, in their struggle against alien colonial rule and against indigenous social and economic domination, Indians imagined, conceptualized, and articulated a vocabulary of rights, of equality and freedom, and of dignity, a vocabulary rooted in the lifeworld of India. We do that struggle a disservice if we erase it from our consideration when interpreting the charter of fundamental rights that, finally, constituted an independent India.

  In particular, it was a struggle that found utterance in the curtain-raiser to the Constitution: the Preamble, with its three words which, over the course of almost two centuries, had acquired the force of an incantation: liberty, equality, fraternity.50

  III. Liberty, Equality, Fraternity: The Framework of Democratic Politics

  The trinity of liberty, equality, fraternity was a familiar one, from the time of the French Revolution. But in his closing speech to the Constituent Assembly on 25 November 1949, the day before the Constitution was adopted, B.R. Ambedkar articulated what these words meant to him:

  Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality, and fraternity as the principles of life. These principles of liberty, equality, and fraternity are not to be treated as separate items in a trinity. They form a union of trinity … liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative … Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.51

  In this paragraph, I contend, Ambedkar distilled the heart and soul of the Indian Constitution. Liberty, equality, and fraternity were the three mutually reinforcing pillars upon which the edifice of the Constitution was erected. All three were equally integral. Each of them could be understood only in the context of the other two.

  A. The Constitutional Trinity

  Liberty was simple enough. In its classic sense, it referred to that threshold of individual freedom that the State could not cross. And so, we had our Rights to Freedom, guaranteed by Articles 19 to 22 of the Constitution. But in order to ensure that the fruits of liberty were accessible to all, the government would also have to commit to equality of status. This was especially true where the laws themselves had long sanctioned discriminatory and unequal treatment: between men and women, rich and poor, white and brown, caste and caste, and the loyal and the disloyal.52 And so we had our ‘Equality Code’, contained within Articles 14 to 18.

  But in a country where the most invidious discrimination had been the product of community sanction, where the social and economic boycotts had been the chosen methods to discipline and to punish, and where society was defined by a system of ‘graded inequality’53 (Ambedkar’s words), it was never going to be enough to direct the State to act by the principles of liberty and equality. Fraternity was the bridge that would make liberty and equality become ‘the natural course of things’. As Ambedkar visualized it, the principle of fraternity would interrogate, undermine, and eventually break down the hierarchical social relations that, over the course of centuries, had come to be treated as ‘natural’.54 Fraternity would reject ‘forms of domination’,55 characterized by ‘social patterns, power relations, and other systematic (structures)’.56 These forms were not imposed by an authoritarian and visible State, but owed their force to silence and slow time, to the insidious and often invisible social processes that, having accumulated over millennia, sometimes by coercion and violence, and sometimes by co-option and hegemony, now possessed the immovability of mountains.57

  What was the purpose of the State guaranteeing liberty if, at the first attempt at exercising their new-found freedom, communities faced excommunication, boycott, and violence? What was the point of promising equality and non-discrimination if the force of convention continued to restrict women to the ‘private sphere’? And what would liberty and equality do for a labour force that remained bound by exploitative and unequal workplace relationships? This was where fraternity came in: to liberate and equalize the individual, not from or with respect to the State, but with respect to her community, her family, and her workplace, so that the guarantees of liberty and equality meant something more than a rope of sand. This fundamental truth was enunciated by Dr S. Radhakrishnan in his opening speech to the Constituent Assembly as early as December 1946. While commending the Objectives Resolution (the blueprint of the Constitution) to the Assembly, Radhakrishnan observed, ‘We wish to bring about a fundamental alteration in the structure of Indian society … to abolish every vestige of despot
ism, every heirloom of inorganic tradition’.58 And so we had a right against economic exploitation (Articles 23 and 24), the prohibition of untouchability (Article 17), and a guarantee against economic and social boycotts (Article 15[2]).

  While fraternity was the bridge that would make liberty and equality meaningful, its role was not merely auxillary. Ambedkar’s reference to the ‘union of trinity’ reflected the insight that the content of liberty and equality (which were otherwise abstract terms) would be shaped by fraternity. For example, when the State guaranteed to all the ‘equality of opportunity’, could it ignore the many centuries of social discrimination that had left some individuals in a far better position to take advantage of this ‘equality’ than others? Would the constitutional commitment to equality, therefore, be better understood as a commitment to affirmatively overcoming the structural and institutional barriers that had existed, and continued to exist, between India’s citizens and the promise of equal treatment? Similarly, could the venerable principle of the ‘freedom of contract’, as an aspect of personal liberty, continue to remain oblivious to the imbalances of social and economic power that defined the relationship between employers and employees?

  And the dependence was mutual. Fraternity itself could not be defined in isolation from liberty and equality. In particular, fraternity was not—as some of the French revolutionaries imagined it, and as some Indian judges have understood it recently59—about promoting a one-for-all-and-all-for-one vision of the nation, where the State itself became personified as ‘a common endeavour’.60 Rather, the role of fraternity was to ensure that, in India, liberty and equality would come to mean something real. Indeed, this understanding of fraternity was put to the test as early as 1948. When the Draft Constitution was published in February of that year, it was thrown open for public comment. Led by B. Pattabhi Sitaramayya, seven members of the Constituent Assembly wanted to rephrase the fraternity clause of the Preamble to put the words ‘unity of the nation’ before ‘dignity of the individual’ instead of the other way around. B.N. Rau, who was charged with vetting all the suggestions, rejected the proposal. He argued that ‘the reason for putting the dignity of the individual first was that unless the dignity of the individual is assured, the nation cannot be united’.61 Following his advice, the original phrasing—‘FRATERNITY, assuring the dignity of the individual and the unity of the nation’—was retained by the Drafting Committee, and finally adopted by the Constituent Assembly.

  To avoid being ambushed by attractive, but ultimately doubtful, interpretations of liberty, equality, and fraternity, it is crucial to understand, as B.N. Rau did in 1948, that despite its numerous references to ‘groups’ and ‘denominations’, it is the individual that is placed at the heart of the Constitution’s Fundamental Rights chapter. The framers of the Constitution were aware of the fallacy—which Western political theory would discover a few decades later62—of treating individuals as abstract and disembodied beings, existing in a world without communal ties.63 They were aware that human beings only made sense of themselves and the world around them through the bonds they forged with others, and through the communities to which they belonged. For this reason, the Fundamental Rights chapter contains explicit safeguards for minorities to preserve their culture and way of life and for religious denominations to manage their own affairs. That does not mean, however, that the Constitution treated groups and communities on a par with the individual. Indeed, specific proposals to that effect were rejected, and Ambedkar expressed his relief that ‘the draft Constitution has … adopted the individual as its unit’.64 And it was this sentiment that was expressed most eloquently by Justice Vivian Bose (again) in his dissenting opinion in Krishnan v. State of Madras:

  Is not the sanctity of the individual recognized and emphasized again and again? Is not our Constitution in violent contrast to those of States where the State is everything and the individual but a slave or a serf to serve the will of those who, for the time being, wield almost absolute power? I have no doubts on this score.65

  This basic point is reflected in the Preamble. The Preamble promises to secure to all the citizens of India liberty, equality, fraternity (and justice).66 It makes no mention of peoples, nations, groups, communities, denominations, or religions. The three pillars of liberty, equality, and fraternity hold up an elaborate constitutional structure that places the individual front and centre. That is how we must understand and interpret the transformative Constitution.

  B. Beyond Liberalism

  In its commitment to the trinity of liberty, equality, and fraternity, the Indian Constitution and its Fundamental Rights chapter departed from the template that had been established by the United States Constitution in 1776, and that has served as the global default ever since. Defined by scholars as the structural-liberal approach to constitutionalism, this template holds that the primary goal of a constitutional bill of rights is to secure individual freedom, and individual freedom is to be secured by limiting State power.67 This creates a set of binaries that are now treated as fundamental to constitutionalism: the State and the individual; the public sphere (subject to constitutional norms of liberty and equality) and the private sphere (of the family, the workplace, and so on, where these norms are inapplicable); the vertical relationship (between State and individual, characterized by fundamental rights) and the horizontal relationship (between individuals and individuals, or groups and corporations, where the Constitution has no say); and so on.

  However, there is nothing natural or inevitable about this characterization of constitutionalism.68 The US Constitution took the form that it did because it was driven by an ascendant bourgeoisie class, arose out of a reaction against an absolutist monarchy, and was designed to guard against the threats to freedom posed by centralized and concentrated power. Its focus on associating individual freedom with limitations upon the government was a product of its time and place.69 But the India of 1947 was a very different place and a very different time, and it chose a different form of constitutionalism. As I shall argue throughout this book, the constitutional trinity challenged the simple polarities between the categories of the State and the ‘public’ on the one hand and the ‘private’ on the other. The framers were clear that ‘private’ structures and private institutions were often sources of domination and authoritarianism, and, therefore, ‘private regimes of power’70 had to be tackled constitutionally.71

  Additionally, while the constitutional trinity defined individual freedom in relation to equality and fraternity, other parts of the Constitution supplemented this vision by viewing the State not merely as a threat to individual freedom, but as a necessary enabler of it, as a vehicle of social transformation.72 This was expressed most clearly in Part IV of the Constitution, the Directive Principles of State Policy (DPSPs). Framed as exhortations to the legislature,73 the DPSPs embody many of the principles of a social-democratic welfare State: equitable distribution of resources, special solicitude towards vulnerable sections of society, strong labour protections, and other socio-economic rights.

  But an important clarification is due here. Despite their vision of an enhanced role for the State, the framers of the Constitution ensured it didn’t collapse into only a vehicle for achieving distributive justice.74 The DPSPs were designed to facilitate and enable the State to carry out programmes designed to achieve economic and social justice, yet not to be equated with the set of judicially enforceable fundamental rights guaranteed by the Constitution. Indeed, despite his earlier enthusiasm for writing socialism into the Constitution, by the end of the drafting process, Ambedkar was clear that it was not the Constituent Assembly’s prerogative to impose an economic philosophy, or an economic system, upon future generations.75 The Indian Constitution was compatible with a socialist government, and in some respects (especially through the DPSPs) it even encouraged socialism. It was not, however, a socialist Constitution.76 While the constitutional trinity travelled well beyond classical liberal constitutionalism’s focus up
on limiting State power, it did not quite travel far enough to determine economic and social policy. As we shall see, that remained the prerogative of democratic politics.77

  C. PILs: The Wrong Turn

  This clarification becomes important in order to briefly, but critically, assess that segment of Indian constitutional jurisprudence which, in popular and scholarly imagination, is taken to represent the Constitution’s transformative character: Public Interest Litigation or PIL or ‘social action litigation’, as one of its votaries insists that it must be called.78 For the first twenty-five years of its history (or so the popular argument goes), the Supreme Court was a conservative institution, aligning with landed and propertied interests to thwart the ambitious reform agenda of successive governments. This avatar of the Court reached its nadir with the notorious Emergency-era judgement in ADM Jabalpur v. Shivakant Shukla. After the Emergency was lifted, a chastened Court decided to make it up to the country for its past sins. So was born the PIL, whose principal features now include a loosening of locus standi requirements, procedural innovations designed to ensure responsive governance (ranging from elaborate, near-legislative ‘guidelines’ filling legal vacuums to the ‘continuing mandamus’), and an expansion of Article 21’s guarantee of life and personal liberty to include a host of socio-economic rights (many of them incorporated from the DPSPs).

  I have no quarrel with the original purpose of PILs as a mode for giving voice to those unable to approach the courts by themselves. Nor do I take issue with invoking the directive principles to infuse socio-economic content into our fundamental rights, to the extent that this is consistent with the text.79 However, PIL today is no longer recognizable by these purposes. Through the substantive expansion of Article 21 (and Article 142), and the removal of procedural constraints in order to enable ‘justice’, it now involves the courts in playing an active role in governance, and taking both quasi-legislative and executive actions. But to defend this as ‘transformative jurisprudence’, we must ignore the Constitution’s text, structure, drafting history, and underlying philosophy. This is a problem. Beginning with the judgement in Maneka Gandhi v. Union of India,80 when the Court decided to rewrite the text of the Constitution because it felt that it was insufficiently progressive, a large part of the history of PIL has been the history of judges and academicians substituting an ideal of justice for the concrete articulation of justice actually in the Constitution.