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(This is the third essay in our round-table discussion of Ornit Shani’s How India Became Democratic. In this essay, I discuss the implications of Shani’s argument for constitutional interpretation. Following this, we shall have a response by the author.)

In 1964, a seven-judge bench of the Supreme Court was asked to decide whether certain forest rights granted by the ruler of a princely state to some of his subjects continued to exist even after the accession of the princely state to the Union of India. Could these people continue to enforce the old ruler’s commitments against a new sovereign? A narrowly divided Court (split 4 – 3) held that they could not, agreeing with the contention of the State of Gujarat that the takeover of the princely states was “an Act of State” that automatically extinguished all subsisting rights, and that those rights remained extinguished unless specifically recognised by the new ruler.

To decide this question, however, the Court had to first answer another question: what was the nature of the transfer of power from the princely rulers to the newly-birthed Union of India? In his concurring opinion, Justice Shah characterised it thus:

“… [the] promulgation of the Constitution did not result in transfer of sovereignty from the Dominion of India to the Union. It was merely change in the form of Government. By the Constitution, the authority of the British Crown over the Dominion was extinguished, and the sovereignty which was till then rooted in the Crown was since the Constitution came into force derived from the people of India. It is true that whatever vestige of authority which the British Crown had over the Dominion of India, since the Indian Independence Act was thereby extinguished, but there was no cession, conquest occupation or transfer of territory. The new governmental set up was the final step in the process of evolution towards self-government. The fact that it did not owe its authority to an outside agency but was taken by the representatives of the people made no difference in its true character. The continuance of the governmental machinery and of the laws of the Dominion, give a lie to any theory of transmission of sovereignty or of the extinction of the sovereignty of the Dominion, and from its ashes, the springing up of another sovereign.”

The Respondents relied upon the judgment of Justice Vivian Bose in Virendra vs State of UP. Justice Bose had held that the Independence had been a transformative moment, ushering in a new legal order where the reign of arbitrariness and despotic power was replaced by the rule of law. Consequently, the “Act of State” doctrine – which placed certain actions of the State beyond the pale of the legal system – simply had no application in the post-Constitutional era. Justice Shah disagreed:

“These assumptions are not supported by history or by constitutional theory. There is no warrant for holding at the stroke of mid-night of the 25th January, 1950, all our pre- existing political institutions ceased to exist, and in the next moment arose a new set of institutions completely unrelated to the past. The Constituent Assembly which gave form to the Constitution functioned for several years under the old regime, and set up the constitutional machinery on the foundations of the earlier political set up. It did not seek to destroy the past institutions: it raised an edifice on what existed before. The Constituent Assembly molded no new sovereignty: it merely gave shape to the aspirations of the people, by destroying foreign control and evolving a completely democratic form of government as a republic. The process was not one of destruction, but of evolution. For reasons already stated it is impossible to hold that what were mere claims to property till the 25th of January, 1950, could be regarded as enforceable against any one. Till the Dominion of India recognised the right, expressly or by implication there was no right to property which the Courts in India could enforce.”

In our constitutional history, for the most part, Justice Shah’s views have carried the day. The argument is a familiar one: from the 1919 Government of India Act, which first introduced representative government under the colonial regime, there had been incremental progress towards Independence. Waymarked by events such as the 1935 Government of India Act, it is argued that this incremental progress almost imperceptibly culminated in the grant of Independence. The ruler changed; partial suffrage became full suffrage; the legislative assembly replaced the Office of the Governor-General as the supreme law-making body; and all of this was a logical evolution from what came before. Fundamentally, nothing changed: the old laws remained, the old governing structures remained, the old forms of rule remained.

This is not an academic debate. The question of how to accurately characterise the moment of constitutional creation has a direct impact upon modern-day constitutional interpretation. For example, it was on the basis of the evolutionary theory that the Bombay High Court, in Narasu Appa Mali, uncritically accepted the characterisation of “personal laws” by the colonial Courts; it was on this unstated basis that the Supreme Court, in Kathi Kalu Oghad, used colonial penal laws such as the Identification of Prisoners Act to narrow the scope of Article 20(3) of the Constitution, reasoning that, after all, the framers could not have intended to frame so wide a guarantee against self-incrimination that the Identification of Prisoners Act would be made redundant; and, until a long-overdue course-correction in Krishna Kumar, it was by invoking the Governor-General’s near-absolute powers of Ordinance-making in the pre-Constitutional era that the Supreme Court granted an almost unchecked discretionary power to the Executive to issue ordinances under the Constitution. The upholding of colonial laws, the endorsement of the continuity of colonial practices, and the restrictive interpretation of Part III of the Constitution – these three staple features of our constitutional jurisprudence are all founded upon the unarticulated premise that the Constitution represents a moment of continuity (or, at best, “evolution”), rather than transformation.

It is in this context that Ornit Shani’s How India Became Democratic is a work of great importance in thinking about the Indian constitutional tradition. As Suhrith and Anupama have demonstrated in their essays, in its granular and detailed elaboration of independent India’s first general election, How India Became Democratic challenges the simplistic claim that the grant of universal franchise was an easy or natural evolution from the representative institutions that existed under the colonial regime. As Shani points out in her Introduction:

“The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people.” (p. 5)

How did this happen? Shani writes about the preparation of the first electoral roll, the strenuous efforts that were made on the ground, and geared towards inclusion rather than exclusion, and the commitment of bureaucrats and officials towards realising the goal of universal adult franchise. At a more abstract level, however, what comes through Shani’s account is that there were three significant ways in which universal adult franchise marked a transformation that was not simply a question of degree, but of the very nature of the political society. First, sheer numbers: under the colonial regime, the extent of representation never crossed 10% of the electorate. From 10% to an aspiration of universality is not an “incremental evolution” – it is, more properly, a fundamental change. Secondly, consistent with the colonial practice of viewing Indian society as an agglomeration of groups that had normative priority over the individual, under the 1919 and 1935 Acts, representative government was conducted through separate electorates. This was repudiated in the Constitution, which envisioned a single electoral roll and universal adult suffrage – thus emphasising the priority of the individual ver the group. And thirdly, the colonial regime treated voting as a privilege, and threw up substantial barriers in order to ensure that only the “worthy” were able to vote. These included property and educational requirements, and for women, these requirements were linked to the status of their husbands. Consistent with Nehru’s observation that any procedural barriers towards exercising the right to vote would amount to a negation of democracy itself, the Constitution removed these disqualifications, placing instead universal adult franchise at its heart.

Therefore, in the size of the electorate, the nature of the electorate, and the character of the electorate, there was absolutely nothing “incremental” about what the Constitution did: it was a foundational and radical change. It is in this context that we can understand what Shani means when she writes that suffrage instituted procedural equality in a deeply hierarchical and unequal society.

We are therefore in a position to see that Justice Shah’s characterisation of the Constitution as creating only a “new governmental setup” and having nothing to do with a change of “sovereignty” is flawed. It is flawed because it puts the cart before the horse: from the fact that colonial laws and legal structures survived into the post-Constitutional era, it is extrapolated that the framing of the Constitution was more a conservative moment than a transformative one. This, then, becomes a self-fulfilling prophecy in a case like Kathi Kalu Oghad, where the existence of colonial legal structures imperceptibly mutates into a justification for them. The logic, however, works the other way: the character of the Constitutional moment should be judged on its own terms (as Shani does), and it should then be asked (as Justice Bose did) how, within the new democratic system, the continuing legal structures ought to be understood. Indeed, Justice Bose’s crucial insight in Virendra was precisely this: that a fundamental change in the constitutional structure (from autocracy to democratic institutions) must necessarily have an impact on constitutional rights (even though the content of the laws would remain the same).

The American legal scholar Akhil Amar provides a good example of this. He examines the First Amendment to the American Constitution, which guarantees “the freedom of speech.” Now, the freedom of speech, as it existed in English common law, was a very limited right in the late-eighteenth century, providing protection only against prior restraint. However, Amar points to the fact that freedom of speech in the British Parliament was virtually absolute, and this was at least partly because according to British constitutional theory, sovereignty rested in Parliament. Amar then argues that the American revolution marked a fundamental shift in this understanding, and in the new American republic, sovereignty was deemed to vest in the people. From this, Amar concludes that when the First Amendment guaranteed “the freedom of speech”, the fact that sovereignty had shifted from Parliament to People indicated that the (absolute) free speech rights enjoyed by Parliament now vested in the people.

I do not here want to comment on the historical accuracy of Amar’s argument. The point, however, is this: a transformation in the underlying constitutional structure (including the form of government) will inevitably affect the overlying substantive legal regime, even though, at the surface, the text of the laws might remain the same. Laws that had a certain meaning and content under an authoritarian regime must have a very different meaning under a democratic system (and this, precisely, was the reasoning of the Court in Krishna Kumar, when it rejected the colonial understanding of the Ordinance-making power).

For this reason, Shani’s demonstration that universal franchise was a transformative structural change provides us with a powerful argument to think through – and indeed, rethink – many of the features of our constitutional jurisprudence that have become virtually sedimented by the passage of time. Suhrith has written about the Rajbala judgment, but there are many others: for example, is it consistent with the framers’ commitment to prioritising the individual over the group through a common electoral roll for the Court to continue prioritising the group over the individual by excluding personal laws from constitutional scrutiny? Is it consistent with the conscious decision of the framers that women were to be treated as public citizens for the Court to continue to apply gendered stereotypes while deciding cases under Article 15(1)? And above all else, is it consistent with the Constitutional commitment to transform subjects into citizens for regimes of legal impunity (under laws such as AFSPA and the UAPA) continue to flourish with the blessing of the Court?

In his critique of Justice Shah’s judgment, K.G. Kannabiran notes that:

This interpretation ignores the social history of the period preceding the Constitution. It does not reckon with the struggles of the people who fought for freedom, the repressive legal structures on whose altars people were sacrificed and their dreams shattered. It ignores the aspirations of the people to build a better society for themselves. The rise of political democracy leading to liberation from foreign domination is not a mere matter of evolution. There can always be a break in the continuity, a severance from the past, without being preceded by violence and destruction. There cannot be, there should not be two social histories one for political theorising and another for legal theorising. The setting up of a Constituent Assembly and the passing of the Indian Independence Act, 1947 are a consequence, a culmination of the struggle for independence. It was the shared belief of a large section of the people that there was a political severance on August 15, 1947. and a severance constitutionally on 26 January 1950. If this aspect is lost sight of, the court disables itself from performing its assigned role under our Constitution. The people who met in the Constituent Assembly were nor mere technicians who had gathered there to prepare a handbook for running the government. They had participated in the struggles and, short of holding elections, every effort had been made to give their gathering a representative character. The historical background leading to the formation of the Constituent Assembly has nor informed our undemanding or interpretation of the Constitutio With that understanding absent, the institutions under the Constitution were looked upon as a continuation of the colonial system of administration.

In the continuing struggle to breathe life into Kannabiran’s constitutional philosophy, in the teeth of a judicial tradition that has too often treated the Constitution as an extension of what came before, Shani’s account of independent India’s first general election is invaluable: it is a point of departure for all of us to think more deeply about what 1947 meant, and how the transformative character of that moment ought to map onto how we think about our Constitution, our citizenship, and our rights.