In early 1948, the draft of the Indian Constitution was made publicly available. For many months, feedback, suggestions, and proposals for amendments poured in from across the country: from provincial governments, local bar associations, organised groups, and even individual citizens. The Drafting Committee, chaired by Dr. B.R. Ambedkar, considered these proposals in detail, recorded its responses, and on more than one occasion, changed the constitutional text. It was this revised draft that was debated by the Constituent Assembly, and eventually became the Constitution of India.
From public participation
Thus, the Indian Constitution was born in an act of public participation. This public participation had begun with the mass movements of the freedom struggle, and culminated in a dialogue between the framers of the Constitution, and the Indian public. It is this history that gives life to those famous words of the Constitution’s Preamble: “We the People of India... do hereby adopt, enact, and give to ourselves this Constitution.”
And this history tells us something else. The Indian Constitution was never intended to be the sole preserve of lawyers and judges. Constitutional dialogue was never meant to be confined to the courtroom and be limited to arguments framed in the formal language of law. The Constitution is not merely a legal document but a charter of values and principles; a vision of a free, just, and equal society. And it is a vision that is not static in time, but subject to constant renewal as each generation discovers anew, through discussion and debate, the founding principles of our Republic.
Constitution and the CAA
It is this idea of the Indian Constitution that has come to the forefront during the recent protests against the Citizenship (Amendment) Act 2019, or the CAA, 2019, the National Register of Citizens (NRC), and the National Population Register (NPR). These protests have been sounded in a diversity of registers: but an important tone has been that of the Constitution. In gathering across India, for example, the Preamble of the Constitution has been read out in public. The Preamble, of course, is not a legally binding document. The CAA, 2019 cannot be struck down if it is found to violate the Preamble.
But the Preamble is something more than that: in its declarations of universal justice, of equality, and of fraternity, it speaks to us of the kind of country that we aspire to be. Invocations of the Preamble, therefore, hold the CAA to a higher standard than that of formal legal validity. They tell us that this conversation is not simply about whether the CAA passes the basic minimum threshold of not being unconstitutional, but whether it is worthy of the Nation that we set out to be in 1947, the ideals of our freedom struggle, and of course, the values and principles that speak to us today.
In public protests, we also hear repeated invocations of Article 14 of the Constitution. Legally, the debate around Article 14 turns upon whether or not the CAA has drawn a “reasonable classification” (although the understanding of “reasonableness” has evolved significantly in the Supreme Court of India’s jurisprudence over the last few years). There are, of course, powerful arguments for why the CAA fails the test of reasonable classification. However, Article 14, with its majestic promise of equality before the law to all persons, is about much more than formal legal doctrine. Indeed, this was recognised by the Supreme Court itself. As early as 1952, while considering an Article 14 argument, Justice Vivian Bose asked “whether the collective conscience of a sovereign democratic republic can regard [a disputed law]... as the sort of substantially equal treatment which men of resolute minds and unbiased views can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be.”
As Justice Bose realised all those years ago, debates around equality cannot avoid deeper questions about the nature of our democracy, and what it means for human beings to be treated justly and fairly. And these are not debates that can be settled in courtrooms, but rather, in enduring public conversation between citizens. As Jawaharlal Nehru said, at the very beginning of the Constitution’s framing, “words are magic things... but even the magic of words sometimes cannot convey the magic of the human spirit”. The conversation around the CAA, then, takes us beyond the words of the Constitution — and the historical baggage they carry after a few decades of judicial interpretation — and asks us about the “magic of the human spirit” that gave them their place in the constitutional text.
Beyond the courtroom
It is in this sense that the Constitution belongs to everyone, and that the ongoing protests can be best understood as acts of reclamation. One is reminded of a famous historical story: in the 1830s, anti-slavery activists in the United States made a remarkable claim. They argued that slavery was prohibited by the American Constitution, which had been born in a moment of revolutionary struggle against an oppressive power. And they made this claim in the teeth of a deeply hostile Supreme Court, which would soon proclaim that slavery was, on the contrary, written into the American Constitution.
But it is the beauty of the Constitution, with its ringing invocation of universal values, that allowed the American abolitionists the space to make that argument in the first place. And while they would be rebuffed by a judiciary that was, at the time, committed to upholding slavery, it was their humanitarian and egalitarian vision that eventually triumphed after a few decades, and was formally written into the Constitution. A century and a half later, history has given its decisive verdict: the abolitionists were right. The Supreme Court got it wrong. And closer home, we have the inspiring example of the LGBTQ+ community, whose determined protest and activism after the Koushal judgment helped the Indian Supreme Court correct its own error, and finally decriminalise same-sex relations in 2018.
These stories tell us that while different institutions can take different views about what the Constitution says, no one institution exercises a monopoly over constitutional truth or wisdom. And this is why it is so vital for constitutionalism to exist, live, and thrive, outside the domain of institutions. The CAA protests have shown us what a dynamic and evolving conversation about the Constitution, and about constitutional values, can look like. It is for us, now, to take this conversation further.
Responses to the protests have taken many forms. One, of course, has been a full-blooded defence of the CAA (and of the NPR and the NRC), on their merits. But there has been another response: that because the constitutional challenge to the CAA is sub judice before the Supreme Court, there is no sense in protesting. The Supreme Court will decide the case, one way or another.
But this argument — as we have seen — misunderstands the history that culminated in the framing of the Constitution, and indeed, misunderstands the nature of the Constitution itself. What is before the Supreme Court is a narrow question: does the CAA meet the minimum threshold that qualifies it to be a validly enacted law? To that, the Court will give a narrow answer: “yes”, or “no”. Whatever that answer will be, it does not even begin to exhaust the range, the scope, and the sheer diversity of the conversations that we have been having over the last few weeks. What the court will do — when it hears and decides the case — is declare the law of the land. That declaration, however, will be a legal one: the Citizenship Act will stay or it will go. But whether it stays or goes, the Constitution will remain: everybody’s Constitution.
Gautam Bhatia is a Delhi-based lawyer