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Legalizing the Revolution

India and the Constitution of the Postcolony

Excerpt from the Introduction

After the image comes the institution. The images of freedom, in their splendid multiplicity, have been articulated and organized since the beginning of the century. By mid-century, despite the best attempts of the imperial regimes, they became impossible to ignore. So the end of the Second World War began a two decades long process whereby nearly half of the world’s population liberated itself from formal colonial domination. Now came the time to realize the free futures that have thus far only been imagined. To constitute the postcolony. Speaking at the initial meeting of the Indian Constituent Assembly at the eve of the country’s formal independence, Jawaharlal Nehru said, “words are magic things. But the magic of words sometime cannot convey the magic of human spirit and the Nation’s passion.” The moment of postcolonial transition called for translating the suppressed aspirations of the long anticolonial decades into concrete, tangible, words. Words that would construct the institutional architecture of the liberated postcolony: the constitution. Which, Nehru said, “feebly seeks to tell the world of what we have thought or dreamt of for so long, and what we now hope to achieve in the near future”. The language of India’s first prime minister, mixing the soaring with the halting, captured the dynamic of hopes and anxieties, dreams and disquiets, that marked the postcolonial institutional moment.

We are a long way from those dreams, and even the disquiets are now set to a different register. While a much discussed term again, decolonization today is thought of mainly as a discursive and epistemic project.The discursive has always been a crucial ground on which anticolonial resistance was mobilized. However, in the middle of the twentieth century, the word ‘decolonization’ signified wide ranging political and economic projects that went far beyond the discursive to touch the institutional and the material. First used by colonial administrators trying to manage the simultaneous dissolution of formal European empires, the dry juridical nomenclature was given political life by its association with more dramatic phrases like ‘liberation struggle’, ‘self-determination’, and ‘independence’.To decolonize, in this politicized sense, meant organizing institutions of power against their existing colonial arrangements. That project had two parts that unfolded over the short twentieth century: to unmake the colonized present, and to make the postcolonial future. Like the Third Estate from which it took its name, the Third World sought to dismantle the colonial Ancien Regime, and constitute a new world on its ruins. The second – arguably more challenging and fraught – part of that project have faded from our collective political memories –  partly due to them seeming anachronistic in our re-globalized times, partly due to the failures of those projects to realize their promises of emancipation. Yet they remain, like sedimentary striations on rocks, as institutional traces of the ambitious horizons of what was decolonization. Hope and anxiety accompanied their beginning. They will eventually give way to improvisations and exhaustions. That project, in both those keys, is the subject of this book.

The site of our exploration is the making of the Indian constitution. Independent India’s constitution was drafted by a Constituent Assembly, over three and a half years, by its 299 members. It was convened under the authority of the British crown, but subsequently did its work autonomously, without any influence or interventions. The result was extensive deliberations, debates, and reports, resulting in the world’s longest national constitution comprising 146,000 odd words. In their technical verbiage and caviling on legalese running over nine large volumes, these deliberations are not welcoming. But they  remain an extraordinary archive for historians of political thought. Conducted over the tumultuous years of transition, they registered the conflicts outside the Assembly, and the alliances within. They demonstrate the concrete challenges of decolonization in discussions spanning from international organizations to the regional variations in land tenancy. These were, in other words, the most comprehensive and thorough textual records of the project of constructing a new order on the ruins of empires. Such records are not unique to India. The decades of decolonization was the most prolific era of constitution making.[xi] Yet constitutional theory and histories of decolonization have rarely crossed paths. The debates in the Constituent Assembly have not added much to our understanding of decolonization, and vice versa the tumultuous rhythms of decolonization did not register in our analytical readings of the debates or the constitution itself. One was found in the archives, the other in judicial interpretations. 

The first wager of this book is that the Constituent Assembly debates contribute to a political theory of decolonization; and conversely, an analysis of the specific socio-historical conjecture of decolonization helps us construct a theory of the postcolonial constitution. In other words, constitutions can tell us something about decolonization, and decolonization can tell us something about constitutions. Each of those argumentative threads can sustain (perhaps even demand) their individual narrative arch. That is, their own book. The former being a book for theorists and historians of decolonization, the latter a book for constitutional theorists and comparative political scientists. The second wager of this book is that those two argumentative threads can (and even need to) be explored together, within the same narrative arch. The braiding of the threads that this book attempts is not only a formal choice. It’s an argument in itself. It becomes evident from reading the debates that even the thick walls of the Assembly could not keep apart the normative and the historical, the juridical and the political. The conditions of postcolonial transition did not allow even the presumption of such a separation. Hence the constitution makers self-consciously tried (with varying degrees of success) to bring them together: to domesticate the unruly demands of transition and animate the disciplined formalism of constitutionalism. Separating out those two strands (while a service to the cause of brevity) would have led to the loss of the specificities of that moment. Therefore I try (with similarly varying degrees of success) to mirror the braided form of their deliberations through my braided narrative. The central argument of the book emerges from those dual themes that demand this narrative form: read as an archive, the records of the constitution making process tells us that the postcolonial transition was an attempt to legalize the revolution.





To Legalize the Revolution

In 1947 Indians won their freedom from two centuries of colonial rule through one of the largest mass movements in history. The effect was felt across the British empire, which was dependent on the army, labor, and capital, that India provided. In international fora India assumed a role as the leading spokesperson for anti-imperial causes. India’s independence proved to be one of the most significant events in the decades long unfolding of decolonization. Yet, hardly anyone belonging to the Indian National Congress (the party that led the anticolonial struggle), or the scholars and scribes who wrote about it, used the word ‘revolution’ to describe what they did or saw. The word that has come to stand in for an epochal shift in the life of a polity is conspicuous in its absence from the historical consciousness of Indians. Perhaps the most paradigmatic case of twentieth century decolonization left behind no ‘memory’ or ‘spirit’ of the revolution.

However, the members of the Constituent Assembly, meeting in the magnificent legislative hall built by the colonial government, frequently spoke of revolutions. Revolutions are rarely far from anyone’s mind when constitutions are made. The term appeared several times in the deliberations of the Constitutional Convention in Philadelphia, which gave us the most influential of all modern constitutions. There it appeared in a particular temporal guise. The reference was – in Madison’s phrase – to the ‘late revolution’. An event of the past, which has brought about the conditions for making of the new constitution, and the principles which that constitution should institutionalize. A revolution that has now been definitively ended by the constitution. In Delhi, they were not talking about what happened in the past. Every time one of the Assembly members spoke of revolution(s), the reference was to an uncertain and troublingly near future. The Indian constitution makers found themselves not at the end but on the “eve of revolutionary changes”.

The anticolonial mass movement was the result of a contingent and fragile alliance between the urban elites and the largely peasant masses. The contingency was their shared unfreedom under colonial rule. The fragility was the outcome of the fact that the departure of the British did not in itself change the inequal, hierarchical, and exploitative social conditions in which the vast majority of Indians lived. Even if directed against an alien enemy, mass mobilizations have an inherent tendency for radicalization. The militant energy of the masses had fueled Congress’ ability to credibly challenge the colonial state. At the same time popular political expressions were frequently directed against Indian elites who exploited their putative fellow travelers on the nationalist journey. As a result, the anticolonial struggle generated multiple insurgent images of freedom which the Congress could hope to harness, but never fully control. Over the last decade of colonial rule, the Congress began to transform itself from a party of mass mobilization to a party of government. The corridors of the statehouses, rather than streets and barricades, became the staging ground for the last act of elite anticolonial politics. And from such corridors, the streets appeared treacherous. The success of the mass mobilization made a postcolonial government an inevitability, while that same mobilization generated unease in the minds of the governors in waiting. So the Congress accepted a transfer of  power in an orderly fashion under the immaculate legality of the British parliament, betraying several of their stated principles. Consequently it inherited in near pristine conditions the formidable apparatus of the colonial state – with its administrators and its army. “Through a fortunate or unfortunate chance, it turned out that it was not through a bloody revolution that we have worked out our emancipation,” the Congress president Pattabhi Sitaramayya said in the Constituent Assembly. There was no revolution in India. At least not yet. On that ‘not yet’ hinged the entire project of postcolonial constitution making.

In its various iterations, constitutional theory has been a theory of closures. It has influentially suggested a narrative for modern politics. Revolutions bring an end to the old regime and generate foundational norms for a new world. They are then followed by a constituent moment, which institutionalizes those new norms. Thus inaugurating the orderly constitutional time of everyday politics. It’s a script with a clear beginning, middle, and end: revolutionary chaos, constituent moment, constitutional order. In this script, revolutions and constitutions are related through a specific temporal sequence and analytical distinction. Crisis followed by stability, change followed by order, insurrections followed by law. Constitutions bring closures. The peaceful ever after following upheavals. They end revolutions.

In India there was no revolution to end. But there was one to be prevented. Absent from the anticolonial past, the revolution demanded a place in the postcolonial future. From where the constitution makers stood, this future ‘revolution’ had two possible incarnations. It could take the shape of a violent uprising of the disaffected masses, fueled by inequality, exploitation, and unfulfilled aspirations of freedom, causing “insurrections and bloodshed”.[xx] Alternatively it could be a thoroughgoing transformation of the socio-economic conditions, carefully planned and managed. Their challenge was authoring a revolution of the second kind, to avoid a revolution of the first kind authored in the streets. The nascent postcolonial present, Nehru told his colleagues in the Constituent Assembly, was  “something which is dynamic, moving, changing and revolutionary.” “[I]f law and Parliament do not fit themselves into the changing picture they cannot control the situation completely.” Rather than extralegal insurrections, revolution had to mean large scale yet orderly change. “A peaceful transference of society”, as Purnima Banerji defined it in the Assembly. The specter of insurrection caused anxiety; planned transformation was the aspiration. “People seem to think of revolutions as a big war, or a big internal struggle, violent struggle”, Nehru said. “Rather, revolution is something which changes the structure of the society, the lives of the people, the way they live and the way they work. That is what is happening in India.”It had to be a revolution without a revolution. And the constitution had to be its institutional architecture. It had to legalize the revolution.

Law and revolutions, generally speaking, do not sit well together. Revolutions don’t abide by laws; laws don’t authorize revolutions. Forced into an uneasy cohabitation, both the nature of the law (constitution) and the revolution (decolonization) changed. Tracking those two trajectories, concurrently, is the goal of the book. The first corresponding to the question: what does the postcolonial transition tell us about what a constitution can and should do? The second part: what does an analysis of the constitution tell us about the nature of the transition from an anticolonial past to a postcolonial future? These are the two main threads the book brings together. In simple terms: what decolonization can tell us about constitutions, and conversely what constitutions can tell us about decolonization.

László Moholy-Nagy, A 19, 1927

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