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The 1947 singularity

India needs to build upon the rights-based approach that informed the country’s adoption of universal suffrage

 

In the debates on India’s contemporary history, the meaning and significance of 1947 and of the framing of the Constitution have always been contested. Did the Constitution mark a moment of discontinuity with the colonial past, and a desire to transform Indian political and social structures? Or was it simply a transfer of political power and a change of rulers, leaving underlying institutional arrangements intact? Supporters of the second view marshal a formidable array of arguments to support their case that the Constitution was simply a continuation of what existed before, with a few cosmetic changes. They point out that two-thirds of the Constitution replicates the 1935 Government of India Act, that key enablers of colonial executive dominance such as the ordinance-making power and Emergency powers were carried over, and that the Constitution expressly endorsed existing colonial laws. This interpretation has sometimes been validated as well by the Supreme Court, which once pointed out that the Constitution “did not seek to destroy the past institutions; it raised an edifice on what existed.”

Incremental progress

Central to this argument is the issue of suffrage. It is argued that in the thirty years before Independence, there had been a slow and incremental development of representative institutions in India. Waymarked by the 1919 and 1935 Government of India Acts, which established a limited franchise and allowed for the functioning of provincial legislative assemblies, the argument — again, in the words of the Supreme Court — is that the “new governmental set-up was [only] the final step in the process of evolution towards self-government.”

This is not merely an academic debate. As the civil liberties lawyer K.G. Kannabiran pointed out, “Our political struggle retained with total composure the entire colonial legal system which had been effectively used against the freedom struggle”. Indeed, elements of this system have been upheld and endorsed by the courts, some quite recently. These include the laws of sedition, blasphemy and criminal defamation, Section 377 of the Indian Penal Code, and far-reaching Emergency powers. All these provisions are based on similar logic: the colonial imperative of reducing citizens to subjects and placing their liberties at the mercy of centralised and unaccountable power.

It is in this context that the publication of a new book — How India Became Democratic: Citizenship and the Making of the Universal Franchise — assumes great importance. Written by the Israeli scholar Ornit Shani, it is the story of the first general election of independent India. The preparations for this election were conducted in tandem with the deliberations of the Constituent Assembly and the framing of the Constitution. They involved massive tasks such as the preparation of electoral rolls for an entire nation and the setting up of an electoral machinery, all against the background of a violent Partition and mass displacement of people.

How India Became Democratic traces the mechanics of this process, which was truly epic in its scale, scope and imagination, and resurrects the histories of the bureaucrats and civil servants, the unsung heroes, who made it possible. Beyond that, however, it makes a crucial point: notwithstanding the existence of voting and the presence of representative institutions in pre-Independence India, the imagination and implementation of universal suffrage was not in any sense a “continuation”, or simply an “incremental development” of what existed before. Rather, it was revolutionary in the true sense of the word, a re-imagination of the social contract and the basic principles that underlay it.

Universal suffrage

In at least four distinct ways, universal suffrage in independent India marked a decisive break from its colonial past. First, arithmetically: the franchise granted by the British regime in the 1919 and 1935 Government of India Acts was highly restricted, and at the highest (in 1935) no more than 10% of Indians could vote. Second, structurally: voting in British India took place under the regime of separate electorates, divided along class and economic lines. Third, the character of the electorate: voting entitlements were based on property and formal literacy-based qualifications, which reproduced existing social and economic hierarchies, and excluded the very people whose interests were most in need of “representation”. Indeed, women’s entitlement to vote was often linked to the status of their husbands. And fourth, voting was a gift of the colonial government, which could be granted or taken away at its will. Suffrage was a privilege accorded to a few Indians, and not a right that all Indians had to decide who would govern them.

Consequently, in expanding the electorate from 10% to almost 100%; in abolishing separate electorates for a conception of universal citizenship; and above all, in decisively rejecting arguments that individuals who were formally “illiterate” were incapable of exercising the franchise, the Indian Constitution – and the first general election – were truly transformative in character. How India Became Democratic argues persuasively that in transforming voting from a privilege that was accorded to a select few to a right that could be enforced by all, independent India transformed the status of its people from subjects to citizens, in important and far-reaching ways. In the realm of the political, it was a transformation from hierarchy and subordination to radical equality.

This insight should make us think more deeply about the Constitution’s transformative character. As Kannabiran wrote, “a Constitution framed after a liberation struggle... is like poetry, emotion recollected in tranquility.” Would it be a fair reading of this poem to assume that in the one, narrow sphere of elections and voting, it meant to transform subjects into citizens, but in all other political and social spheres, it intended to retain hierarchy and subordination? Would this be in tune with the freedom struggle itself, whose aspirations went much beyond the simple demand of periodic elections? Could it not, instead, be argued that universal suffrage was the most visible and tangible instance of the constitutional aspiration to democratise the Indian polity and society in its most comprehensive sense: that is, to democratise the relationship between the individual and the state even after elections, by constraining the amount of centralised power that the state could accumulate (even when it claimed to be acting in the best interests of citizens), and to democratise the relationships of power and dominance within other non-state institutions, such as the workplace and the family? Could it not be said, in language developed by South African constitutional scholars, that the Constitution intended to take us from a “culture of authority” to a “culture of justification” – that is, a culture in which every exercise of power and authority must be justified to those who are subject to it, even when it is said to be for their own good?

Changes in court

There are recent signs that the courts have begun to understand this. In early 2017, in a very significant judgment involving the executive’s ordinance-making powers, the Supreme Court expressly departed from colonial precedents on the subject, and placed important limits upon the scope of presidential ordinances. Later in the year, when the court was hearing the dispute between the elected Delhi government and the Lieutenant-Governor (another colonial holdover), more than one counsel framed the issue in terms of the constitutional commitment to progressively deepening democracy. And indeed, many of the pending and upcoming cases in the Supreme Court’s docket involve questions of how much power the state can wield over individuals, what rights individuals have to decide for themselves how they will define their relationship with the state, and above all, how the constitutional “culture of justification” holds the state accountable for the uses and abuses of such power.

In hearing and deciding these cases, the court has an opportunity to affirm the words of one of its greatest civil rights judges, Justice Vivian Bose, who recognised the deeply transformative character of the Constitution when he said: “Is not the sanctity of the individual recognised and emphasised again and again? Is not our Constitution in violent contrast to those of states where the state is everything and the individual but a slave or a serf to serve the will of those who for the time being wield almost absolute power?” How India Became Democratic helps us to understand that the answer to both those questions is an unambiguous “yes.”

Gautam Bhatia is a Delhi-based lawyer

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Printable version | Feb 26, 2020 7:42:56 PM | https://www.thehindu.com/opinion/lead/the-1947-singularity/article22870618.ece

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