Does the Indian Constitution Speak for a Nation? Arvind Elangovan

Guest post by ARVIND ELANGOVAN

Like many others, I too have been anguished about the recent developments in JNU. Not only because the institution is my alma mater, but also because there has been a concerted effort now to frame the discourse in terms of nationalism and anti-nationalism. Sadly, in responding to the charge of anti-nationalism, defenders of free speech and other associated values of the integrity of the university are also participating in this discourse and arguing why dissent is not anti-national. While I agree with this latter point of view, I would like to join those voices that argue that the question of nationalism is irrelevant to the functioning of the state. The unity and integrity of India, understood in its territorial sense, is not strengthened by ideas of nationalism nor is it weakened by expressions of antinationalism.

In the context of the current debate about nations, nationalism, and anti-nationalism, an oft-evoked ally is the Indian constitution. Commentators across the board have praised the Indian constitution for either embodying an ‘idea of India,’ one that is noble and worthy, or praised the institutions that are sanctioned by the constitution, such as the Honorable High Courts and the Supreme Court. Strangely, across the ideological divides, it has become a commonplace perception that the nation as embodied in the Indian constitution has been violated, or at the very least not respected. Conversely, at the other end of the spectrum, it is believed that the Indian constitution expressly provides provisions to persecute individuals or groups for espousing ‘anti-national’ views. The belief among the latter group is that the constitution protects the idea of the nation, however it may be defined. This remarkable unity in such a divisive moment in Indian politics today is both a reason for pause and an invitation to at least cursorily reexamine the text and the history of this important document called the Indian constitution.

It is remarkable to note that the word ‘nation’ with a singular exception (and I will say more about this shortly) hardly makes a prominent appearance in the text of the constitution. In several critical parts of the constitution, any definition or mention of the nation is noticeably absent. Parts I, II, and III are significant parts of the constitution that outline the borders of India in terms of territory, specify the rights of citizenship by naming the inhabitants and in part III, most importantly, enumerate the fundamental rights of these inhabitants within the territory specified who would be constituting this republic. Of course, as eminent constitutional lawyers and scholars have always pointed out, these rights are not absolute. These rights could only be exercised within the confines of reasonable restrictions in the interests of ‘sovereignty and integrity of India, the security of the State, …, public order, decency or morality..’ etc. However, what is important is that in the enjoyment of the rights of citizenship enumerated in Part II and other rights enumerated in Part III, no specific condition is imposed by the constitution on its citizens to adhere to any particular conception of the nation. The constitution does not even speculate on this relationship between idea(s) of the nation and that of the citizen.

As we know, the constitution is divided into twenty-two parts, and in eighteen of those parts, the word nation is absent. However, the word nation appears somewhat prominently in Parts IV and IVA of the constitution, which specify the Directive Principles and Fundamental Duties of Indian citizens. Though Directive Principles are not legally enforceable, the Part specifies that the State will apply these principles in making the laws of the land. Thus the State is exhorted to protect the welfare of the people in which ‘justice, social, economic and political, shall inform all the institutions of the national life.’ Similarly, the State is enjoined to protect ‘national monuments,’ and maintain ‘honorable relations between nations.’ Though the state mentions monuments of ‘national importance’ and ‘national life,’ there is a noticeable absence of any mention of an idea of the nation to which a citizen must adhere.

Part IVA of the constitution though is most interesting. This section of Part IV enumerates the Fundamental Duties of Indian citizens. As readers would remember, this section was added by the infamous 42nd amendment of the constitution introduced during the emergency between 1975 and 1977. Two points are worthy to note here. Firstly, the amendment sought to radically integrate the word ‘nation’ prominently in the Indian constitution. In the same breath it also detailed the anti-national activities that it aimed to proscribe. Secondly, the amendment laid out the duties of Indian citizen to respect the National Flag, National Anthem, National struggle for freedom, render national service when called and perhaps most importantly, “to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.” Thus, the section that most celebrates any sense of nationalism in the Indian constitution appears in a part introduced during a period that almost everyone today would consider as one of the darkest periods of postcolonial Indian democracy. Hence, groups that otherwise deride the imposition of emergency in the name of democracy must pause to wonder if they are invoking precisely that portion of the constitution, which was introduced precisely when there was a suspension of democracy.

By all accounts, then, the framers of the constitution did not impute or require an idea of the nation to be defined in the constitution. This is not to suggest that the framers did not combat rival conceptions of the nation in the constituent assembly, the body that framed the constitution. Indeed, several scholars have highlighted the divergent perceptions about contentious issues such as citizenship, fundamental rights, protection for minorities, and emergency provisions, to mention only a few. Each of these debates certainly drew upon ideas of India that varied widely with each other. However, the provisions of the constitution per se remained remarkably free of identifying and defining a particular idea of the nation. Instead, the constitution focused, and perhaps excessively, on the idea of building a strong state, an argument that is well documented in the literature discussing the nature of the Indian constitution.

Yet, often, observers and commentators, perhaps unwittingly, often conflate the idea of the Indian nation with that of the constitution. Why? I suggest that the historical context in which the constitution came to be written and, perhaps more importantly, the manner in which the knowledge of the Indian constitution was reproduced through institutional nationalism played a significant role. Let me explain this briefly.

The timing of the drafting of the Indian constitution coincided with decolonization. Given that the document was drafted between 1946 and 1950, coming as it did after decades of anticolonial struggle, the same personalities involved in the period of politics prior to decolonization were mainly involved in drafting the constitution as well. This meant that several provisions of the Indian constitution had its roots in the policies adopted by the Congress party in prior decades. Moreover, in a powerful gesture, members of the constituent assembly passed the constitution unanimously, thus giving rise to the powerful fiction that the document had unanimous consent across the political spectrum.

One of the biggest propellers of this political fiction was Granville Austin, that inimitable scholar from Washington, D.C. whose work The Indian Constitution: Cornerstone of a Nation has had such a wide ranging influence on academics and Judges of the Supreme Court alike. For the first time after the framing of the constitution, Austin systematically laid out the organic and cohesive unity of the Indian constitution. He identified that the main axis around which the constitution revolved was that of social revolution, and along with it the ideals of national unity and stability were considered important as well. In Austin’s view, the framers of the constitution were able to ‘draft a constitution that was both a declaration of social intent and an intricate administrative blueprint because of the extraordinary sense of unity among the members.’ Constitution-making thus became an exercise in nation building and the constitution itself an embodiment of the nation, thus earning the sobriquet, ‘cornerstone.’

Of course, one has to only look at Upendra Baxi’s incisive critique of Austin’s Cornerstone and also his second book to dispel the notion that the Indian constitution was a seamless product of national unity. Yet, Austin’s influence in the academia and beyond continued to grow. Judges of the Supreme Court constantly referred to Austin’s work on the constitution to make their arguments in important cases. To date, interestingly, there has been no viable alternative thesis that has been advanced that could eclipse Austin. Such is the powerful hold of the conflation between nationalism and constitutionalism.

Perhaps more importantly, this union between the nation and the constitution received a fresh lease of life in the way in which knowledge about the Indian constitution developed in the decades after the 1960s. Soon after Austin published his magnum opus, the Indian Institute of Public Administration published The Framing of India’s Constitution: Select Documents in five volumes that contained primary documents independent of the debates of the constituent assembly published by the Lok Sabha Secretariat. These volumes perpetuated this union between the nation and the constitution.

Consider the following example from Volume 1 of Framing. In Part One, titled, “Nationalist Efforts at Constitution-Making and Demand for a Constituent Assembly (1889-1939)”, the editors reproduce extracts of some of the major demands made by different nationalist leaders in different historical contexts as part of a seamless evolution of India’s constitutional history. These extracts, prefaced with limited historical context, serve to convey an impression of stagist evolution of constitutional demands from limited representation to complete autonomy. Thus, it begins with the 1889 document penned by the British radical freethinker and collaborator of Annie Besant Charles Bradlaugh, and ends with the Liberal Federation resolution on Dominion Status and the demand for a constituent assembly. However, what’s distinctively missing in this first section are alternate proposals that were put forward around this time on India’s constitutional question by other nationalist leaders. For instance, it is interesting to note that while the Nehru Report of August 1928 finds a prominent mention, the Muslim League’s response to Nehru’s report, encapsulated in what has since come to be known as Jinnah’s Fourteen Points, does not find a mention in the volume. Strikingly, in Shiva Rao’s introduction to the historical background of India’s constitution published in Volume 5, the Muslim League’s response is omitted as well. Equally, Dr. B R Ambedkar’s considered evidence to the Franchise committee of the Southborough Commission in 1919 and the episode of Poona Pact, which witnessed the conflict between Mahatma Gandhi and Dr. B R Ambedkar on the question of reserving seats for the Dalit community, finds no mention in this section. Instead, only extracts of documents prepared mainly by the Indian National Congress find a presence in this section. Most tellingly, the Muslim League’s resolution for Pakistan in 1940 does not find a mention, although the August offer of Cripps of 1940 does.

The trouble with omitting these important documents was that even as they presented the Congress’s version of history as the history of the Indian constitution, they were also tailored to prevent a discussion about the conflictual history of constitution making. Further, subtly, these documents aided in crafting an idea of the nation in the making by leaving out those parts of history that questioned or challenged Congress’s ideas of nationalism. In effacing the competing demands made by the Indian Muslim League, Ambedkar, and others on behalf of the ‘backward’ classes, the editors of the volumes presented a constitutional history that was at once seamless, uncontroversial, and nationalist, with perfunctory nods to other competing voices.

Such a view of history not only does disservice to the minority voices (Muslims and Dalits broadly speaking) but also to Congress itself. For instance, the recrafting of India’s constitutional history by selectively reproducing documents from various phases of Congress’s existence hardly captures the nuance of debate that occurred within the party. Even within the higher echelons of Congress leadership between Jawaharlal Nehru, Sardar Patel, and Abul Kalam Azad, the years leading up to independence were far from consensual; on the contrary, their relationship was marked by severe strain and disagreements on important political and constitutional matters. In essence then, the first thirty-four documents and indeed the subsequent documents in other sub-sections are crafted around a pronounced, albeit invisible narrative of cohesive, evolutionary, nationalist-inspired development of constitutionalism in India. In such a view, multiple and competing demands made by the Muslims, Dalits, and other minorities are treated as minor difficulties in the path of achieving India’s independence and its crowning glory, the Indian constitution.

Interestingly, this nationalistic fervor of ‘protecting’ a standard view of constitutional history operates by not only controlling this narrative but also by regulating the documentation and importantly, the accessibility of papers relating to the constitution making process. A few years back when I tried to access the papers supposedly housed in the archives of the law ministry, I was told that no such papers exist. Indeed, the officer concerned was not even aware of a body called the constituent assembly. A similar inquiry at the National Archives of India (New Delhi) did not yield any fruitful result either. The crowning jewel of this tale of archival callousness has to be the fact that today if one has to fruitfully research on Rajendra Prasad, Chairman of the Constituent Assembly and independent India’s first President, one has to visit the University of Toronto Library in Toronto, Canada, a situation to which I was alerted by a friend. How is it that a ‘nation’ and its leadership that constantly celebrates the Indian constitution, for the most part, has so woefully and willfully been callous about documenting and preserving the papers relating to its foremost text, the ‘cornerstone of the nation?’ Isn’t a lack of access to constitutional documents an obstacle to critically reading the history of the Indian constitution?

In such a scenario, it is no wonder that scholars are constrained to reproduce only particular versions – and variations – of Indian constitutional history based on the largely available debates and deliberations found in the Constituent Assembly Debates and the Framing. (Of course, this is not to deny other creative ways of writing Indian constitutional history, including reading these debates against the grain, but one cannot avoid the determining influence that these debates and deliberations have on any such narrative.) Studies of the Indian constitution, then, are infused with nationalism not only because of an unwitting confusion but also due to a steady cultivation of institutionalized nationalism that has conditioned the access to and discussion of this important document.

Finally, let us not forget that the framers of the Indian constitution deliberated and framed this document only after the extensive debates on the question of Pakistan had reached a drastic end. The creation of Pakistan, among other messages, strongly conveyed to the leaders remaining in India that they were already witnessing the breakdown of any singular ideas of a nation. Moreover, the justifiable claims of the remaining minority groups in the country, especially the one led by Dr. B R Ambedkar, convinced the Congress ‘oligarchy’ that there were bound to be multiple ideas of India and many nations in the postcolonial period. The constitution reflects this recognition, especially in the chapter on fundamental rights where it basically vests the state with powers to override all stated liberties. It is almost as if the state is the primary bearer of rights; citizens come later.

Nationalist renderings of the constitution then have followed a historical trajectory from Granville Austin’s towering work to the institutionalized reproduction of constitutional knowledge. The thrust of the Indian constitution does not leave much space for defining a nation. Indeed, the framers recognized this aspect and have not defined a nation in the constitution. Efforts to do so during the emergency failed dramatically as well. Hence, believers of the constitution must realize that there is a safe distance between ideas of nations and nationalism and that of the constitution. Of course, this does not prevent us from reading into the constitution an idea of India or competing ideas of the nation. Much like Spivak’s figure of the subaltern, the constitution is often spoken for. But, the point is to recognize that it could only be one of the ideas among many. It would therefore behoove us, as citizens, to stay away from defining the nation in the constitution or criminalizing one another as an anti-national.

In the spirit of JNU, this piece emerged out of a conversation with JNU alums, Ananya Dasgupta and Zaheer Abbas.

References:

Austin, Granville. The Indian Constitution: Cornerstone of a Nation. New Delhi: Oxford University Press, 1966.

Baxi, Upendra, ‘The Little Done, the Vast Undone: Some Reflections on Reading Granville Austin’s, The Indian Constitution’, Journal of the Indian Law Institute 9/323 (1967): 323–430.

Rao, Shiva. Ed. The Framing of India’s Constitution, Vol. I-V, New Delhi: Indian Institute of Public Administration, 1965-67.

Arvind Elangovan teaches History at Wright State University in Dayton, Ohio. 

2 thoughts on “Does the Indian Constitution Speak for a Nation? Arvind Elangovan

  1. jomo

    Thank you. It was an important articulation. The comfort that most upper middle class upper caste liberals feel with conflating our nationalism with the cornerstone thesis, prevents us from effectively recognizing what exactly our nationalism is. Who it includes, what it precludes. Food for thought. Thanks again.

  2. Sibdas

    Very good read and evoke thoughts. But first of all Nationalism should be defined. If you do not take it in a narrow sense, there is less chance of conflict. I am also curious to know how the idea of Nationalism changes with class and caste.

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