I fear I have taken on more than I can handle, by starting the process of teaching myself more about India’s Constitution.
I started in the previous month with what I thought would be a rather more simple question: how did the constitution start off? What were its founding principles, its aims, its intentions? Why were these the principles, aims and intentions?
Well, if this is indeed a rather more simple question, I fear many more Mondays in the
months years to come will be devoted to the entire task I have set myself: to learn more about India’s constitution.
But hey, the one thing we have is time!
So allow me to indulge myself, and devote one more Monday to the topic we covered in January 2020: understand better the founding of the Indian constitution, before moving on to other topics related to it.
I’d recommend you begin by watching this video of a speech given by Rohinton Nariman in the year 2013. It is nearly fifty minutes long, but all of those fifty minutes are worth your time. In my case, I ended up watching it twice, and if only I had time, I would watch it again. It raises many, many questions that make me want to learn more – and that is a good thing.
Here are just five things that I wanted to learn more about:
- B.N. Rau and the travels that he undertook before writing the Constitution,
- The city of Danzig and the freedom of movement
- The (to me, frankly amazing) right to property and its understanding and implementation in an Indian context
- Dr. Ambedkar’s opinion about having no axe to grind as a member of the constituent assembly. It is a great way to start thinking about public choice theory, if you ask me
- And how difficult the United States of America and even more so, Australia, have made the process for amending the constitution.
And believe me, I have cherry picked these five, more or less at random. There’s so much more to think about!
Second, in the post I wrote in January, I spoke about wishing I could learn more about how the constituent assembly was formed. Reading this article helped me understand that the people who wrote the constitution (the members of the constituent assembly) also were the people who ratified it!
An even more important point to note is that the Constituent Assembly was deeply involved in the drafting the Constitution itself. It met over 11 sessions and 166 days between 1947 and 1950 to discuss the Constitution. In contrast, in the US, there was a very clear separation between the drafting of the Constitution (done by the Philadelphia convention – a central body with representation from each state), and the state-level ratification conventions, which voted on it later.
This separation meant that the ratifiers did not have their hands dirty in the document, with the exception of a small minority of members who were a common presence in both conventions. They had no emotional stake in the Constitution draft and could vote on it independently. It was up to the drafters of the Constitution to convince them of this document. This is what necessitated the “Federalist Papers” – a remarkable exercise in marketing the newly proposed law of the land.
No such marketing was required in India, given that the ratifiers were the drafters too.
Useful more for trivia buffs (and I enthusiastically plead guilty to the charge) than perhaps for the topic at hand, but an informative read nonetheless is this rather long article in Scroll. On the history of constitutionalism in India:
Knowing only too well that Englishmen only counted as knowledge what Englishmen declared to be so, when Rao wrote to Napier in March 1872 to decline the seat on the Viceregal Council, he appended the relevant sections from Bowring’s Eastern Experiences, adding that nothing could be more interesting than participating in the development of “something like a constitution” wherein “a Native Administration” might be brought under “a system of fundamental principles, derived from the advanced political wisdom of Europe” albeit “carefully adapted to the conditions of the Native society”.
I am somewhat ashamed to note that it took my reading of this article to know what I should have been aware of in any case, given that I teach at the Gokhale Institute of Politics and Economics:
The most vocal was Rao’s sometime protégé and collaborator, Mahadev Ranade, whose essay, “A Constitution for Native States”, which was published in the Quarterly Journal of the Poona Sarvajanik Sabha, generated much debate and discussion. It eventually prompted a series of remarkable works detailing indigenous forms of constitutionalism.
The most prominent of these works was Kashinath Telang and Ranade’s Rise of the Maratha Power, which carefully explained how much Shivaji’s success owed to the ‘constitutional’ nature of his rule (and concomitantly, how much Maratha decline owed to Shivaji’s descendants departing from such constitutional rule).
And finally, two book recommendations, with the caveat that I myself have as yet not read either. They’re both by the same author, who is currently coordinating with the Hindustan Times to publish a series on the same topic that I am writing about on these pages:
Thrilled to be helping the @htTweets with a series on India’s 70th constitutional anniversary. We begin with a superb piece by Uday Mehta on the founding moment: https://t.co/NHGoS8BKsF
— Madhav Khosla (@MadKhosla) January 20, 2020
The two books are India’s Founding Moment, and The Indian Constitution (Oxford India Short Introductions Series). As I said, I haven’t read them myself, but did purchase them today. Why then do I recommend them? Well, one, the relevance to the topic is obvious, but also, this article from Livemint a long time ago really helped.
The Constitution is inevitably shaped by and shapes politics. How it does so is a question far too ambitious for my book. But something I do try to gently do, wherever I could, is suggest how certain legal decisions were shaped by the political circumstances as well as how our overemphasis on politics has prevented us from appreciating the legal significance of particular aspects of our Constitutional law.
The good news, for me, is that I get a month to try and read these two books before I tackle the subject of the Indian Constitution once again.
Once again, a tip of the hat by way of thanks to Murali Neelakantan for helpful recommendations, and a request to my readers to help out along similar lines.