October 05, 2016

India: Why do our constitutional debates matter? (Vikram Raghavan)

Why do our constitutional debates matter?

They can help us retrace the roads taken along India’s republican journey, even as they shape and define our common political identity as citizens

 by Vikram Raghavan

In August 1951, an elegantly attired European walked into Madras University’s beach campus. An Austro-Hungarian by birth, Charles Henry Alexandrowicz was an international lawyer from London. He had been recruited to head the university’s new department of international and constitutional law. Unfazed by the stifling heat, Alexandrowicz set himself a punishing schedule and quickly transformed his department into a leading research centre.
Six years later, Alexandrowicz wrote a short monograph: Constitutional Developments In India. He pointed out that courts were frequently ignoring the constituent assembly’s debates about the framing of our Constitution when deciding constitutional cases. He felt that this was a mistake as the debates offered valuable guidance. The debates could help fill gaps in the Constitution’s text; lessen tensions between the legislature and judiciary; reduce the need for constitutional amendments; and adapt the charter to changing times.
Alexandrowicz’s ideas challenged prevailing practice. When interpreting a law, Indian judges consistently declined to rely on floor speeches made during its passage in the legislature. The Supreme Court later extended this principle to the Constitution itself. It reasoned that the assembly’s proceedings published in a multiple-volume set, the Constituent Assembly Debates, weren’t helpful in resolving disputes about the Constitution’s meaning. Only the text’s actual words and phrases mattered.
Not everyone shared this view. Some judges used the assembly’s committee reports to resolve ambiguities in the text. In doing so, they broadened our understanding of “constitutional debates” to cover assembly documents other than the speeches found in the Debates. But even these documents were only sparingly used in constitutional litigation.
After the 1973 Kesavananda case, however, the judiciary’s attitude shifted. Lawyers and judges began openly consulting and citing the debates. Alexandrowicz, however, received no credit for this turnaround. He had moved to Australia in 1961 and his attention turned to other subjects.
Just before Alexandrowicz left India, a young American arrived in Delhi. Granville Austin’s research focused on the assembly’s personalities, politics and processes. Constitutional Developments was among the first books that he read. Austin included multiple references to the book in his PhD thesis, which was later published under the title Indian Constitution: Cornerstone Of A Nation.
Cornerstone was the first authoritative account of our Constitution’s making. Its footnotes were crammed with quotations and citations from the Debates. It quickly became a standard reference text for the bar and the bench. Contemporaneous with Cornerstone, the Indian Institute of Public Administration published a five-volume series, The Framing Of India’s Constitution. It contained committee minutes, reports, and drafts from the assembly’s files. Shortly thereafter, the British government began releasing its India records in a 12-volume set called Transfer Of Power. These bulky volumes shed new light on the assembly’s early days.
Outside the law, however, not many knew about these resources and those who did were unable to find them. Aside from bar associations and high courts, most libraries either lacked the entire collection or imposed access restrictions on relevant volumes. The historian, Ramachandra Guha, was able to read the full set of Debates only at Stanford University, US. His resourceful bookseller in Delhi was simply unable to procure them.
When I began law school, the library had an incomplete assortment of the Debates. It did not have a single Framing or Transfer Of Power volume. Tellingly, no one tore pages from the Debates—they simply weren’t in demand. After all, our professors argued that the debates were an “archaeological method” to study constitutional law. This mindset prevailed until quite recently.
Things are, however, changing. Across the country, law students are using the debates for projects and articles. Assembly speeches are prescribed reading not only in law schools but also in many social science departments. What’s most remarkable, however, is that many ordinary citizens are also becoming voracious readers of the Debates. Why is this happening?
First, the assembly’s records are more widely available than ever before. For many years, the Debates and the Framing collections were out of print. In 2000, the Lok Sabha reprinted the Debates on superior quality paper and later uploaded the entire content on to its website. An updated Framing series was published in 2004. More recently, the Centre for Law and Policy Research launched an easy-to-access online Debates portal.
Second, rising interest in B.R. Ambedkar has contributed to greater curiosity about the assembly. Until the 1980s, Ambedkar’s constitutional contributions weren’t widely acknowledged. Yet, as our national pantheon expanded beyond Gandhi and Nehru, the intellectual elite and public grew more fascinated with Ambedkar and his role in the constitution-making exercise.
Third, overcoming past ambivalence towards the Constitution, many historians and political scientists acknowledge the Debates’ importance to modern Indian history. In his monumental India After Gandhi, Guha devotes an entire chapter to the assembly. Shefali Jha, Rochana Bajpai, Niraja Jayal and Pratap Bhanu Mehta have all written extensively about the assembly on a wide range of topics. This academic interest has now filtered down into high school curricula. The National Council Of Educational Research And Training’s (NCERT’s) new civics and governance textbooks feature several excerpts from the debates. This will only further boost public interest in the assembly.
But returning to our central theme, why do the debates matter?
First, the debates are a large reservoir of material about our founding. They reveal the nation’s highest ideals, common aspirations, and constitutional values. They help us retrace the roads taken along India’s republican journey, even as they shape and define our common political identity as citizens.
Second, the debates reveal a great deal about our founders. Those men and women had conflicting ideological beliefs and political allegiances. Yet, it was this team of rivals that founded a modern constitutional democracy over the Raj’s ruins. They did so under hardly propitious circumstances. Delhi was burning after Partition. Refugees streamed in. India fought a war with Pakistan. And Gandhi was assassinated. Undaunted by these events, the assembly pressed on.
Third, the debates can help resolve recurring controversies such as whether India ought to have a presidential rather than a parliamentary system. Or whether a collegium is necessary for judicial appointments. The debates can supply the form and content of the Constitution’s basic features, which lie beyond the reach of constitutional amendments.
Finally, as much as they shine a light on the past, the debates can help address present-day questions that the assembly neither faced nor foresaw. Take, for instance, the controversy over government restrictions on social media. Meeting in the late 1940s, assembly members could not have imagined a world with Twitter or Facebook. Yet, their passionate colloquies about the importance of free expression remain sobering admonitions to legislators and policymakers.
Like any historical text, the debates must be understood in context and with care. I, for one, take a few precautions when researching what the assembly decided on any given question.
First, it is not a good idea to rely exclusively on the Debates to understand the assembly’s thinking. Those volumes are largely verbatim transcripts from three readings of the draft constitution in the assembly. They can be either silent, or even misleading, about specific issues. As vividly depicted in Shyam Benegal’s TV series Samvidhaan, many questions were settled outside the assembly chamber. One must consult other sources such as the Framing volumes or oral histories, to obtain the full picture.
Second, India has one of the largest collections of founding documents. This mass can inevitably lead to multiple, even competing, narratives about the assembly’s ultimate choices. Even so, we should not forcibly attempt to reconcile conflicting narratives. Indeed, multiple readings of the “debates” only enhance their richness and relevance.
Third, it is difficult to isolate the assembly’s collective positions from selective quotations or stray speeches. This is especially true for complex questions like secularism, property and language. On religion, for instance, more than a hundred members took the floor. As James Chiriyankandath reveals, these interventions resulted in a bewildering cacophony of opinions.
Finally, while in the US, I’m struck by how much Americans revere their founders who lived in the 18th century. They worry immensely about what James Madison, Alexander Hamilton and Thomas Jefferson might think about global positioning system devices, late-term abortions, or violent video games. Indeed, the conservative Tea Party insists that the American constitution must be understood exclusively through its founders’ beliefs from more than 200 years ago.
A liberal at heart, Alexandrowicz would have been baffled by this phenomenon. Yes, he, too, called for understanding the Constitution with the historical prism of the assembly debates. But his principal objective in so doing was to promote awareness about the document itself. Reading the debates was just one way to achieve that goal. Alexandrowicz would have certainly opposed any American-style hero worship of our founders. India needs no Tea Party in rediscovering the Constitution through its founding debates.
Vikram Raghavan is working on a book about India’s founding as a republic.