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Citizenship and the Passive Revolution

Modernity as has been argued, is a set of processes that can follow different sequences in different societies and at different historical conjunctures. In India unlike in the west, the two processes of modernity and democracy emerged almost simultaneously. This paper explores the dilemmas created by the 'different sequentiality' by focusing on one revealing moment - the 1951 Act that first amended the Constitution, interpreted here as a landmark in the story of modernity in India. While the amendment was seen to limit individual rights it reflected primarily the imperatives of the modernising project envisaged by India's anti-imperialist elite that included the creation of a bourgeois democracy, the capitalist transformation of the economy and the establishment of social justice.

I Reading/Writing the Constitution

If we ever understood ‘reading’ as an innocent journey to the meaning of a text,1 that time is long past. It’s been over three decades since Barthes wrote that celebrated passage: ...a text consists not of a line of words, releasing a single ‘theological’ meaning (the ‘message’ of an author-god), but of a multidimensional space in which are married and contested several writings, none of them original: the text is a fabric of quotations, resulting from a thousand sources of culture.2 It is in the act of reading that these ‘thousand centres’ derive a unity: …there is a site where this multiplicity is collected, and this site is not the author, as has hitherto been claimed, but the reader: the reader is the very space in which are inscribed, without any of them being lost, all the citations out of which a writing is made; the unity of a text is not in its origin but in its destination...3 In this understanding of course, neither author nor reader is an individual person, but processes, criss-crossing networks of meaning. The person of the author or reader is “only one passage” from that “vast cultural space” that “constitutes us even before we are born”.4 Drawing on this account, there are two aspects of reading that I would like to draw attention to – first, that the meaning of a text is available to us, to the reader, only in the present, at the moment of reading, and it is futile to attempt to uncover the ‘real’ meaning intended by the author. Second, that meanings emerge from a text and have consequences independently of the intention of the author, since every text is embedded in an interrelated network of other texts whose boundaries are porous. These two aspects – the inescapability of the present and the impossibility of controlling meaning – are both key to a third understanding, that all reading is situated, reading is possible only from some location or the other. Location is spatially and temporally specific, and specific in terms of gender, caste, race, class and a host of other identifications, not all at once, but some of these would emerge as relevant in some contexts and others at other times. If ‘reading’ is always in this sense an act that is differentially located in relations of power, then ‘writing’ is all the more so. Indeed, I would argue that every act of reading is in turn an act of writing. Every act of interpretation demarcates and populates a terrain afresh towards a particular end. What does it mean then, to read the Constitution today? The overwhelming sense about the Constitution at this moment is that it is under attack from the Hindu right. That the moral and ethical vision underlying it is threatened – the vision which enabled a multireligious and multicultural society with a substantial Hindu majority to survive as a democracy. This perception is not unfounded, given the systematic attacks on minorities and minority rights ever since the current coalition led by the Hindu right-wing Bharatiya Janata Party came to power, and the initiative this government took to set up a constitutional review committee, which has since submitted a draft report. In this climate it is not surprising that there has been a closing of leftdemocratic ranks and a reassertion of faith in the values under attack. I too believe that India cannot survive except as a multicultural democracy, but in this paper I attempt to demonstrate that reading and assessing the constitution simply as if it were a blueprint to construct such a society, might be misleading. The kind of reading that I refer to above is very recent, it emerges in the 1990s, in many ways as a response to the attacks referred to earlier. In this trend, several writers have assessed the Indian Constitution and political structures in terms of their liberal democratic values. The questions that have interested these scholars are primarily whether secularism of one kind or another has been successful, and whether community and individual rights have eroded each other or reinforced one another.5 Prior to this, there have either been legalistic, technical, ostensibly value-neutral readings of the Constitution6 or Marxist interpretations in which the primary purpose of the Constitution was seen to be that of protecting a certain order of bourgeois property rights.7 Both the ‘Marxist’ as well as the ‘Liberal’ interpretations are limited in their own ways. Each isolates a specific aspect of the Constitution, making for conceptual clarity, but at the cost of richness and complexity. Values such as ‘secularism’ cannot be understood in isolation from political economy imperatives, any more than ‘bourgeois property rights’ can be understood in Citizenship and the Passive Revolution Interpreting the First Amendment Modernity as has been argued, is a set of processes that can follow different sequences in different societies and at different historical conjunctures; in India unlike in the west, the two processes of modernity and democracy emerged almost simultaneously. This paper explores the dilemmas created by the ‘different sequentiality’ by focusing on one revealing moment – the 1951 Act that first amended the Constitution, interpreted here as a landmark in the story of modernity in India. While the amendment was seen to limit individual rights it reflected primarily the imperatives of the modernising project envisaged by India’s anti-imperialist elite that included the creation of a bourgeois democracy, the capitalist transformation of the economy and the establishment of social justice. NIVEDITA MENON Economic and Political Weekly May 1, 2004 1813 isolation from liberal democratic concerns. Looking back on the Constitution at the beginning of the 21st century, after 50 years of its functioning, it seems to me that we would better understand the current conjuncture in Indian politics if we understood that document as part of a larger story – as a crucial landmark in the story of modernity in India. Telling the story in this way enables a better understanding, both of the specific form that democracy took in India as well as of constitutionalism itself as a process. I will frame this story within Sudipta Kaviraj’s formulation on ‘modernity’ as a set of processes that can follow different sequences in different societies and at different historical conjunctures. He argues that modernity is not the name of a single process, but “a time in history in which several processes of social change tend to occur in combination. These processes are…the increasing centrality of the modern state and its forms of governmentality and discipline, social individuation, capitalist industrialisation, the rise of nationalism and democracy”. These processes differ from one society to another in the sequence in which they appear as well as in their “internal sequences (like the sequence between consumer and capital goods industries within the processes of industrialisation.”) In addition, modern processes transform traditional structures which differ from one society to another – modernity therefore takes differentiated forms in different societies.8 In some earlier writings, Kaviraj has argued that while in the west the processes of modernity stabilised themselves before the pressures for democracy began, in India the two processes emerged almost simultaneously. The logic of one therefore, can “seriously affect, hinder or alter the logic” of the other.9 However, the architects of institution-making in India read the evidence of European history simply as reflecting an earlier stage at which India could now be assumed to be. Thus, since “a functional relationship could be discerned between democracy and capitalism in the developed stages of capitalist society”, it was assumed that India could make “the unworried choice” of a capitalist economy and liberal-democratic Constitution. But as Kaviraj suggests, it is equally plausible to contend that in the west there was “a strictly sequential relationship between capitalist industrialisation and political democracy. Initial disciplining of the working class in a regime of capitalist production was achieved only because no democratic obstructions could be placed in its path”.10 This paper will explore the dilemmas created by the different sequentiality here, in Kaviraj’s terms, by focusing on one revealing moment – the first act amending the Constitution in 1951. The act was passed by the provisional parliament, (228 votes to 20), soon after the Constitution came into effect, and just before the first general elections in 1952 – it was, in this sense, both too late and too soon. That is, the amendments reopened crucial issues in parliament that the same body had, as the constituent assembly, considered settled just over a year ago. But at the same time, Nehru insisted that the amendments could not wait for the elections to put in place the first parliament elected by universal suffrage. “Far from changing this Constitution,” he said, “these amendments give full effect to the Constitution as we wanted it to be”. These were not new ideas, he insisted, “We have only sought to bring out what is implicit”.11 I suggest that if we interpret the Constitution as a landmark in the story of modernity in India, ‘secularism’ must be seen as the central value animating it. However, secularism in this reading, goes much further than the state-community relationship. As I have suggested elsewhere, extending the arguments of Partha Chatterjee and of others like Ashis Nandy,12 ‘secularism’ mediates three aspects of the modernising project of the Indian antiimperialist elite. These are: (a) bourgeois democracy, (which here is about the interrelations among communities, individual citizens and the state at different levels), (b) the capitalist transformation of the economy, through the creation of the mobile and unmarked citizen and (c) social justice – to the extent that formal legal equality, (for example, through the abolition of untouchability and caste discrimination) was necessary for the project of capitalist transformation.13 The first amendment can be seen as limiting individual rights in three significant areas – (a) Article 15 – the individual’s right to equality was circumscribed by strengthening government’s ability to make special provisions “for backward classes of citizens”, (b) Article 19 – the individual’s right to freedom of expression was limited in the interests of state security, and (c) Article 31 – the individual’s right to property was made subject to the state’s right to acquire property to resolve “the land problem”.14 In fact, during the debate, some members indignantly reminded the House that while the first amendment to the American constitution had been to extend “individual and social rights”, our first amendment did the opposite, and curtailed individual freedoms.15 I will briefly suggest here that the three particular changes sought by the amendment are concerned less with individual freedoms as such; rather, they reflect the imperatives of the project of the modernising elites that I have outlined above. That is, the first amendment can be read as an attempt by the national movement-turned-nation state both to control and ride the forces of democracy in the drive to modernity. “A curious mixture of revolution and reaction”, a member termed it during the debate in parliament – referring to the amendment to Article 31 as the former and the amendment to Article 19, as the latter.16 The point I would make here is, of course, that the parameters of “revolution and reaction” (while readily available in that political context, and even today), are inadequate to comprehend what is happening at that point. The abolition of zamindari, the end of caste discrimination, and limitations on freedom of speech and expression – these three achievements were critical for a nation state in the process of establishing a capitalist economy through a passive revolution. Debate on Whether the Constitution Is Liberal Each restriction of individual rights in this amendment sought to empower a different subject – the first, a cultural community, the second, the state and the third, a class. Clearly, if the individual is understood to be the cornerstone of modern liberal democracies, then the first amendment can be understood to have further disabled what Sunil Khilnani calls ‘Indian liberalism’. Even during the Congress’ “most strongly liberal phase”, he notes, liberty was understood not as an individual right but as a nation’s collective right to self-determination. Thus, “individuality as a way of social being was a precarious undertaking”. It was because of this that Indian liberalism in his view, was “crippled from its origins”.17 Democracy itself “stood in a lonely corner” amidst the “intellectual festivities”18 of the early 20th century, it was not debated or thought through, it simply arrived, “in a fit of absent-mindedness”.19 The constituent assembly debates, rich and lengthy as they were, “carry little trace of the classic fears that haunted both advocates and critics of democracy 1814 Economic and Political Weekly May 1, 2004 in 19th century Europe: what would happen if the vote was given to the poor, the uneducated, the dispossessed?”20 Further, the establishment of community rights through affirmative action “weakened the pressure to accord universal rights” and “encouraged demands for special dispensations for selected groups”.21 It would be difficult to imagine a more classic statement than Khilnani’s, of post-colonial democracy as a Lack. Faced with a political philosophy and practice in another century and another place, that looks as unlike Europe’s liberal democracy as he can imagine, he still terms it ‘liberalism’ – but a liberalism crippled by its inability to give priority to what European liberalism privileged, to fear what European liberalism feared. Perhaps, one is constrained to point out, it isn’t liberalism then? Other scholars would disagree, both with Khilnani as well as with my question to him. Rajeev Bhargava and Gurpreet Mahajan, for instance, argue that liberal democracy need not look the way Khilnani wants it to look. Bhargava holds that it is a myth that modern conditions destroy every collective formation and unleash different forms of individualism. Rather, while some kinds of groups are undermined by modernity, others are generated by it – for example, the nation. So while there is a functional tie between a nation state and a modern society of individualised and equalised human beings, no particular temporal sequence is necessitated – a nation state may precede or succeed a modern society. Thus, Bhargava argues, contra Khilnani, that liberalism understood as the nation’s collective right to self-determination does not necessarily preclude individual rights, the two are not mutually exclusive. Indeed, democracy came to India as nationalism, so arguments for nationalism are in fact coterminous with arguments for democracy. For the Indian political elite, a rightsbased liberalism construed individualistically, was crucial, hence the emphasis on civil liberties. However, liberalism was also for them, associated with social justice. In this context, Bhargava quotes K M Panikkar, member of the constituent assembly, as interpreting Vivekananda as a liberal, for whom reforming Hinduism was a way of infusing it with liberal principles.22 In this argument then, India happened to develop another version of liberalism, one that respected group identities and rights as well as individual rights. Gurpreet Mahajan makes a somewhat different argument in defence of Indian liberalism against arguments such as Khilnani’s, though she does not directly address his work. She too, like Bhargava, holds that the individual is not the only legitimate subject of democratic discourse, and that almost all welfare democracies recognise communities in policy and law. Therefore, the presence of community rights in the Indian Constitution does not mark a radical departure from liberal democratic practices.23 But the more interesting argument that Mahajan makes is that at the time that the Constitution was framed, it was at a historical moment when the liberal framework did not recognise community rights. Thus, at that point, the Indian Constitution did ‘deviate’ from liberal principles. Later on, the liberal perspective itself changed, and then the primary concerns of the Indian Constitution conformed with the new liberal agendas and perspectives.24 The question that emerges for us here is this – should not the ‘deviation’ in the first instance have provoked a very different kind of inquiry into the nature of both Indian democracy and liberalism? Why does Mahajan instead, take such pains to establish that as a result of later changes in the liberal perspective, it was the Indian Constitution that returned to the liberal fold? It would seem that despite their differences, all three of the scholars discussed above continue in one way or the other to legitimise the expectation that Indian democracy should justify itself in terms of ‘liberalism’ as an a priori value. Sumit Sarkar offers a reading of Indian democracy that, while not engaging directly with the debate outlined above, also focuses on what could be termed the liberal features of the Indian state. He lists these “five key features of post-colonial25 Indian state structure” as “a framework of basic bourgeois-liberal civil rights; parliamentary democracy grounded in universal suffrage; safeguards for ‘backward’ or ‘depressed’ groups through a balancing of ‘freedom’ and ‘equality’ with ‘justice’; federalism (though eventually with an unusually strong centre; and secularism (in one or several of its many possible meanings)”.26 Highlighting the interconnections, “maybe even the inseparability” of democracy, secularism and federalism in the Indian context, Sarkar urges recognition of the fact that the emergence of India as a democracy was not inevitable. It is a “major political and human achievement” that we cannot afford to take for granted.27 In making this argument, he is positioning himself against both ‘liberal-imperialist narratives’ of constitutional continuity with colonial legislations, as well as against “colonial discourse analysis”, which he attributes to Partha Chatterjee, where the post-colonial state “is seen as fundamentally an outgrowth of the colonial regime, since both are bound up with the postenlightenment modern nation state project”.28 Instead, he suggests that it would be more fruitful to explore “the roots of the ‘liberal’ civil rights aspects of the Constitution” through a deployment of Habermas’s notion of public spheres, where private people could come together to constitute publics. Of course, he concedes, the differences (from the European experience) are striking, but the point “lies in multiple appropriations”.29 Sarkar notes that unlike in western Europe, the public spheres here were not primarily grounded in the autonomous development of an indigenous bourgeois civil society. Further, he recognises that the origins of individuation “clearly lay in colonial administrative-cum-hegemonic…initiatives”, that is, not in an internal dynamic, and neither did individuation here become a mass phenomenon.30 However, such ‘striking’ differences are too easily glossed over. It is precisely these differences that make ‘multiple appropriations’ a fraught and unpredictable exercise, and the emergence of public spheres a limited and fragmented process in India, with profound implications for the very nature of democracy.31 Constitutionalism and Power This is where we must go back to Sarkar’s characterisation of Partha Chatterjee’s position on the post-colonial state, referred to above, as “an outgrowth of the colonial regime, since both are bound up with the post-enlightenment modern nation state project”. This reading of Chatterjee’s argument rather misses the point, for it is concerned really with recalling to memory the manner of entry of modernity into our societies. The fact that this encounter with modernity occurred through a political system that was at its core, violent, distinguishes ‘our’ modernity (to use Chatterjee’s evocative phrase)32 from modernity as it emerged in Europe. On the one hand there was the despotic colonial state strategically making adjustments at various levels with different sections of the subject population, and on the other, there were the differing investments these sections had in the modern norms and institutions brought in by colonialism. The dislocation caused Economic and Political Weekly May 1, 2004 1815 by modernity in Europe four centuries ago was equally brutal, but in Asia and Africa there was a double violence involved – the simultaneous disruption caused by modernity and colonialism. It is this encounter that is suggested by the term ‘postcolonial’ as I use it in this paper. Post colonialism thus begins from the very first moment of colonial contact. As one set of scholars puts it, “it is the discourse of oppositionality which colonialism brings into being”.33 I would like to introduce here a distinction Chatterjee makes, between civil society and political society, that I find key to reconceptualising democratic politics today.34 “Civil society” according to Chatterjee is constituted by the institutions of modern associational life, while ‘political society’ is a domain of mediating institutions between civil society and state. The mark of non-western modernity is the hiatus between civil society, composed of a small section of ‘citizens’, and political society, composed of ‘population’. Population groups, unlike citizens, are not the product of rational contractual association, but rather, are the target of the ‘policy’ of the legal bureaucratic apparatus of the state. The civil society of citizens, shaped by the normative ideals of western modernity, excludes the vast mass of the population, towards which it assumes a ‘pedagogical mission’ of enlightenment. On the other hand, in order to understand the principles that govern political society, we must begin with the relationship of the ‘development state’ to population, which it attempts to regulate through the governmental form of ‘welfare’. Political society – parties, movements, non-party political formations – channelises popular demands on the state through a form of mobilisation we call democracy. “The point is that the practices that activate the forms and methods of mobilisation and participation in political society are not always consistent with the principles of association in civil society”. This distinction, it may be noted, is more usefully understood as a conceptual distinction than as representing two distinct spheres. Democratic aspirations in other words, often violate institutional norms of liberal civil society. It is in this context that we need to understand the rethinking of constitutionalism as a self-evidently democratic exercise. By ‘constitutionalism’ here I refer to a specific method adopted by modern democracies of safeguarding the autonomy of the self, whether conceived of in terms of the individual or the community. By historicising this method, we remind ourselves, to use Upendra Baxi’s words, that “much of the business of ‘modern’ constitutionalism was transacted during the early halcyon days of colonialism/imperialism. That historical timespace marks a combined and uneven development of the world in the processes of early modernity…[c]onstitutionalism inherits the propensity for violent social exclusion from the ‘modern’ ”.35 It is this aspect of constitutionalism I find missing in the accounts of Indian democracy discussed earlier. Sumit Sarkar’s account of the emergence of democracy in India does acknowledge conflict, but his focus is on anti-liberals, the Hindu rightwing, who are recognised as significant adversaries. So the conflict is seen as that between the traditional elites, bent on preserving privilege, and the modern elites, using the resources of modernity to build a new order. Sarkar gives two examples of colonial education in Bengal, for example, in which women and lower castes were able to use education to challenge patriarchal and brahminical social hierarchies.36 However, the operation of power, the exclusions set in place in the process of Constitution-making, go far beyond a simple tradition/modernity or even a liberal/anti-liberal conflict. I am pointing to the possibility that what are considered the ‘liberal’ features of the constitution could serve a purpose other than ensuring democracy, if we take seriously my suggestion that the Constitution marks one moment in the arrival of ‘modernity’ in India. Secularism has not always been even ‘democratic’ – Sarkar goes so far as to concede that in India, secularism’s close association with the ‘nation-building’ project has strengthened its assimilation with ‘statist endeavours’, and to this extent, arguments denouncing secularism for being authoritarian and centralist do have a point. However, this was not inevitable, he argues, for secularism can also be democratic. We could concede that possibility – but the point is that in India secularism took the form it did.37 The other accounts we have discussed here avoid any acknowledgement of power and conflict at all. How accurate is it to see the Constitution as a document emerging from reasoned debate among adversaries, representing different, even conflicting points of view, in which a balance was reached, or sought to be reached, between individual and community rights, between centre and states? Let me suggest in advance that what we will find when we look at the debate over the first amendment bill, is that rather than people trying to understand one another, there are people talking past one another, that opposing motivations come together to produce apparent agreement. These varying motivations and values come to fall into an apparent consensus that we tend to recognise in terms of existing codes – ‘liberal democratic’, ‘bourgeois’, ‘Hindu right’ and so on. If we remove this familiar grid, however, we may be able to tell a different story. As Chantal Mouffe points out, “To envisage politics as a rational process of negotiation among individuals is to obliterate the whole dimension of power and antagonism”, that is to say, it is to obliterate the ‘political’ itself. However, “to negate the political does not make it disappear, it only leads to bewilderment in the face of its manifestations and to impotence in dealing with them”.38 Let us turn now to the first amendment and to the circumstances in which it was thought to be necessary, to explore the questions I have raised. II Debating the First Amendment Once the Constitution came into effect, the courts came up with a series of judgments that held up constitutional provisions on both property and special provisions for disadvantaged citizens, and struck down state government actions curbing freedom of speech as unconstitutional.39 The first amendment bill was introduced in May 1951, and the three significant changes it proposed were (a) the addition of Clause 4 to Article 15, by which government was enabled to make special provisions for backward classes of citizens, (b) the insertion of 31a and 31b, by which government acquisition of land could not be challenged on grounds of inadequate compensation and the Ninth Schedule was created, in which land reform legislation was to be placed, protecting it from judicial review and (c) Clause c was added to Article 19, by which government could limit freedom of speech “in the interests of the security of the state”. This latter was a wider formulation than the earlier “overthrow of the state”. The amendment was introduced in a parliament that was both unicameral, the Rajya Sabha not having been constituted yet, and 1816 Economic and Political Weekly May 1, 2004 provisional, for the first general elections were yet to take place. In response to those who argued that the provisional parliament was not competent to amend the Constitution, Nehru argued, in the characteristic style of one with a “pedagogical mission of enlightenment” (to use Partha Chatterjee’s phrase referred to earlier), that surely those who had framed the Constitution were competent to amend it.40 In this section we will look at the debate over these amendments in the Lok Sabha, tracing the network of interconnections between the three articles. Article 31 – Property and the Bourgeois State To begin with Article 31 then, and the logic of the passive revolution. I refer here of course, to Sudipta Kaviraj’s well known development of the Gramscian notion to explain the pattern of development adopted by the Indian state. That is, for a thoroughgoing bourgeois revolution to be effected, for industrialisation to take place, a domestic market must be built up by reducing poverty in the countryside. This can only be done by effective land reforms, which have been legislated but never effectively implemented because of the influence of landed interests in the coalition of ruling classes. The entire planning process until the 1980s has therefore been an exercise in trying to promote industrialisation without the radical transformation of agriculture.41 Sudipta Kaviraj characterises the Indian state as bourgeois in three senses42 – it has a bourgeois legal system, property structure and institutions of governance revealed in the Constitution. Second, the institutions of planning explicitly acknowledged the state in the reproduction of capital and in setting economic targets in a way compatible with bourgeois developmental perspectives. Third, the bourgeoisie exercises leadership function in the coalition of classes which controls the state.43 As we have seen, the courts had been holding up many of the land reform legislations. In the Lok Sabha debates, there were many who used the language of justice and equality when supporting the amendment to Article 31. Thus Renuka Ray spoke of economic and social equality44 and Pandit Kunzru agreed with Nehru’s introductory remarks that property was not an absolute right but was subject to the rights of the community which were greater than the rights of the individual.45 Kala Venkatarao asked of those who claimed high compensation, “Who compensated the poor ryot when feudalism became the law of the land and when free farming was replaced?”46 But Nehru’s statement, while using the rhetoric of justice too, best captures the real imperatives behind the need to abolish zamindari – political stability and the need to end feudal relations in land. He pointed out that in those countries of Asia where the ‘land problem’ had been resolved rapidly, ‘a new stability’ had been produced. He urged, “We have to think in terms of large schemes of social engineering…not petty reforms…”47 Referring to the differing opinions of different high courts, he said, “While we wait for this confusion gradually to resolve itself, powerful agrarian movements may grow up…Long arguments and repeated appeals to the courts are dangerous to the state, from the security point of view, from the food production point of view and from the individual point of view, whether it is that of the zamindar or the tenant…”48 Others too saw land reforms as a means of preventing dangerous revolutionary movements. Reverend D’Souza, for example, said that he did not see the amendment to Article 31 as ‘expropriatory or purely socialistic’, rather, the right to property is guaranteed and compensation given. That is why he supports the amendment – “middle fortunes are a true protection of individual liberty”.49 That these reforms were not meant to weaken property rights as such was spelt out by T T Krishnamachari in a letter to Nehru during discussions on the fourth amendment later in 1954 – “We have to move to the left on agricultural land, but moving left in industry will prevent expansion.”50 This was what was clear to Hussain Imam too, zamindar MP from Bihar, protesting the lack of fairness and uniformity in compensation – “Whatever the law you may pass, it must not be for zamindari alone but for all kinds of property. Property must not be sacrosanct when it is held by black marketeers and industrialists and taken without compensation when held by simple zamindars of villages.”51 In a sharp retort reflecting modern capitalist notions of property, Pandit Krishna Chandra Sharma puts Hussain Imam in his place – “The other property a man creates. Land you have not created.”52 It is significant that no one in parliament explicitly opposed the abolition of zamindari. The debate was over whether compensation should be ‘just’ and ‘adequate’. Here was the fledgling bourgeois state putting in place the notions of legitimate and illegitimate property. Article 19 – Freedom of Expression and the Nation State The debate over this amendment reflects most clearly both the disjuncture between civil and political society as well as the concretising of the national movement into the nation state. Nehru, while introducing the bill and in his other interventions, repeatedly laid stress on two factors necessitating the greater need for curbs on freedom of speech. First, the ‘moral problem’ posed by irresponsible journalism. “Less responsible news-sheets are full of vulgarity and indecency and falsehood…poisoning the mind of the younger generation, degrading their mental integrity and moral standards. It is for me not a political problem but a moral problem.”53 More significantly, such newspapers ‘peddling filth’ are specifically identified as ‘small sheets’ in Hindi and Urdu ‘that do not require much capital.’54 Others supporting the amendment also refer to “various language papers” that contain material of which “any decent journalist would be ashamed.”55 There are several references to ‘the vernacular press’ as being full of ‘filth’ and ‘venom.’ The civil society elite with their pedagogical mission are here displayed in all their civilised horror at what goes on in political society in the name of free speech. The second reason offered is, ‘great peril and danger to the state’. Nehru makes mysterious references to ‘a time of grave danger…’ ‘…a kind of pre-war state of deep crisis’, ‘a challenge comparable to the challenge of war’. Of course the background is Telangana, where the armed peasant insurrection led by the CPI was in full force. However Nehru makes only a fleeting reference to this – “whether it was in Telangana or wherever it may be.”56 Later he is more explicit – “Every state must have the right of…’police power’…Every state has to defend itself against an external enemy or an internal enemy, and freedom is limited for that purpose.”57 An impeccably liberal argument opposing these restrictions is made by the Hindu right-wing leader, SP Mookerjee, perhaps Economic and Political Weekly May 1, 2004 1817 because the Hindu Right is so thoroughly crushed and marginalised by the Indian state at the time. “No country can be governed by force or by coercion,” he argued, pointing out that existing provisions of preventive detention and the exceptions to Article 19(2), as well as the criminal law were sufficient to handle the situation as described by Nehru. Referring to the new provision of restrictions on freedom of expression in the interest of “friendly relations with foreign countries”, Mookerjee demanded to know if this would preclude criticism of foreign countries, but more importantly, he declared – “If I hold that this partition has been a mistake and has to be annulled some day or the other, why should I not have the right to agitate for it?”58 In response, Pandit Krishna Chandra Sharma tells him, “the Constitution is based on the old India being partitioned. So to rise in revolt against Pakistan is to rise in revolt against the Constitution itself.”59 A number of members defend the restrictions on the grounds that our ‘ignorant and illiterate’ population is ‘easy to mislead’, unlike in other countries where ‘long exercise of freedom’ has instilled discipline and restraint;60 that the ‘phlegmatic English character’ does not ‘respond to incitement’ as easily as Indians do, so it is not useful to follow the English precedent;61 that unlike in America, ‘our people…are living, some in the 16th century, some in the 17th…’62 At the same time, the elite represented in parliament is suspicious too, of the state governments, another manifestation of political society in Partha Chatterjee’s sense. Frank Anthony fears that state legislatures might use such powers to crush political opposition,63 and Durgabai that state governments may be influenced by local considerations or by “the will of the majority party there.”64 Nehru agrees that he too would have liked such a limitation, both in the interests of uniformity as well as because, as he disarmingly confided, “…it is possible for a state assembly sometimes to do something which you and I might not approve of.”65 It is left to B R Ambedkar to point out that since ‘public order’ is covered by this amendment, which is under state legislative jurisdiction, either this amendment must give powers equally to centre and states, or the amendment itself would have to be ratified by state legislatures, which would delay the amendment considerably.66 Thus he refused to participate in the debate on the terms that have been set – that is whether or not state governments can be trusted not to misuse the amendment. Again, it is instructive to look at the reasons why Ambedkar supported these restrictions on the freedom of expression. He makes no reference at all either to immorality or to the need to protect state security. Rather, he focuses on ‘public order’ and ‘incitement to offence’. Specifically, he gives instances and ‘concrete cases’ – social boycott of scheduled castes by caste Hindus in a particular village and the prevention of a scheduled caste person from using a well. He asked if the definition of incitement to violence should be extended to cover situations “where one community does something in order to harm or injure another community.”67 There are then, at least three positions on freedom of speech during the debate on the first amendment, not easily amenable to a simple recuperation along democratic/anti-democratic or liberal/anti-liberal lines – Nehru’s authoritarian statism, Mookerjee’s classic liberalism and Ambedkar’s severe distrust of unrestricted freedom of expression in a society marked by extreme inequality and inhuman oppression. Nevertheless, Ambedkar is not unproblematically seduced by the statist argument, as is clear from his refusal to back Nehru’s reasons for the amendment. What we see here is a playing out of our postcolonial dilemma at a historical moment when the nation state is still imbued with the legitimacy of the anti-imperialist struggle, but is in the process of consolidating itself along lines that show a sharp break with its earlier radical agenda. Article 15 – The State and Community Here lies the root of our post-colonial misery: not in our inability to think out new forms of the modern community but in our surrender to the old forms of the modern state. If the nation is an imagined community and if nations must also take the form of states, then our theoretical language must allow us to talk about community and state at the same time. I do not think our present theoretical language allows us to do this.68 Ambedkar was one of those who did attempt the task of talking about community and state at the same time. In a study of Ambedkar’s turn to Buddhism, Martin Fuchs says, “He pursued what one might term a counter-modern modernist project.” That is, in the modernist style, he thought of religions as representing competing interpretations of the world, and used the yardstick of universalist reason to subject them to a test. However, he did this, not in order to disown religion but to develop what Fuchs calls a ‘civic religion.’ Buddhist dhamma was for him, a way of replacing religion with an ethics of social action. Dhamma becomes a ‘post-religious religion’ in a search for “a community religion of self-respect.”69 For Ambedkar then, the dalit identity was not borne by individual citizens, but by a community, and mass conversion to Buddhism was the way to offer Hinduism an irrefutable challenge. The rights of this community had to be protected by the state, for society was corrupt and violent. Thus, as Upendra Baxi points out, Ambedkar departed from the contemporary liberal paradigm of rights and justice. That is, rights borne by the community are not constraints on the power of the state, rather they are legal entitlements protected by the state, that constrain other members of society. The state therefore had the power to redefine the cultural practices of society. In developing this understanding Ambedkar anticipated later developments in theories of rights.70 It is this understanding that animates the amendment to Article 15 that would enable government to make special provisions for backward classes. Nehru outlined a complex understanding of group rights as defensible in a democracy – “The whole conception of the Fundamental Rights is the protection of individual liberty and freedom…That might be said to be the dominating idea of the 19th century…Nevertheless…other additional ideas came into the field that are represented by our Directive Principles of State Policy. If in the protection of individual liberty you protect also individual or group inequality, then you come into conflict” with the Directive Principles. In an interesting definition, he characterises Directive Principles as “representing a dynamic movement towards a certain objective,” while Fundamental Rights represent “something static, to preserve certain rights which exist.”71 Nehru took pains during the debate to establish that enacting special provisions for backward classes is not ‘communalism’,72 a charge made by several members.73 Nevertheless, in a revealing aside, he says, “I do not particularly like the words ‘backward class of citizens’. What I mean is this: it is the backward individual citizen that we should help. Why should we brand groups and 1818 Economic and Political Weekly May 1, 2004 classes into backward and forward?” At this, several MPs interject ‘That is the point.’74 KT Shah argues that by using the phrase backward ‘classes’, ‘citizens’ retreats to the background.75 Nevertheless, uncomfortable though he and others were with relinquishing the language of individual citizenship rights – in this context, in effect a mask for privilege – the nature of participation in the anti-imperialist struggles and the pressures from political society ensured that community identity had a central place in the Constitution. Ambedkar spells it out when he responds to arguments complaining that special provisions for backward classes will discriminate against those from other castes. Syamnandan Sahaya, for example, argues that the amendment, by making special arrangements for backward classes, violates Article 29 (2), which prohibits discrimination on grounds of caste.76 Ambedkar states categorically, “…it is impossible to make any reservation which would not result in excluding somebody who has a caste…[T]here is no Hindu who has not a caste…”77 It is interesting that while the politics of the anti-imperialist movement never centred around the individual and individual rights, there is a continuous discomfort expressed in parliament at the marginalising of individual rights and individual identity. In these debates, there is an implied model of democracy at work, which “we” must try to match, or at least, offer reasons for not matching. For instance, Nehru says, referring to the Madras High Court order which struck down the government order reserving seats on the basis of caste, that from one point of view, it was a valid judgment because “…if communities as such are brought into the picture, it does go against certain explicit or implied provisions of the constitution”. I have emphasised the word ‘implied’ because Nehru seems to be suggesting that if an individualistic bias is not immediately visible in the Constitution, it must be implicit, because constitutions are supposed to centre on the individual citizen. Nevertheless, he continues, despite this implied provision, “we have to deal with the situation where for a variety of causes for which the present generation is not to blame…there are groups, classes, individuals, communities…who are backward”. Even more telling is the hope he expresses, that eventually, every individual will think, not of his group or caste but of the ‘larger community’. That is, his ideal situation ultimately, is not one where individual citizens are actors, but where they form another community that transcends smaller groupings, the community of the nation.78 Conclusion In this interpretation of the first amendment act I have tried to demonstrate that the three main amendments that it made to the Constitution are intrinsically linked, and reveal three different aspects of the nation-building project of India’s modernising elites. I have suggested that we would find it difficult to locate the faultlines very clearly across liberal/anti-liberal, secular/ communal or democratic/anti-democratic lines. For the logic that operates is the logic of ‘our’ modernity, of the postcolonial bourgeois state – caught in the throes of the passive revolution, emerging as nation state from the national movement, and trying to work out the tension between the liberal theory of the individual and the postcolonial experience of ‘incomplete’ individuation and lived community identity. All this within a democratic framework that interwove modernisation, industrialisation and secularism into one strand. How do we understand the disjuncture between the Supreme Court’s continuous attempts to prioritise individual rights and the parliament’s insistence on other bearers of rights – the community, the larger society, the nation state? It seems to me that the judges of the Supreme Court, being unconstrained by democratic accountability, remained untouched by the pressures of ‘political society’. The Supreme Court, therefore, could continue to uphold an impeccably ‘liberal’ version of rights such as it imagined to be prevalent in the ‘civil society’ of the west. The parliament on the contrary, had both to be directed by political society as well as to control it. What we see in the first amendment act is the logic of this situation. Address for correspondence: niveditamenon2001@yahoo.co.uk Notes [Paper presented at seminar on Political Philosophy of the Indian Constitution, organised by the Advanced Programme on Social and Political Theory, CSDS, at Goa in August 2001. I thank all the participants and the organiser Rajeev Bhargava for their comments.]

 

Notes

1 I understand ‘text’ to mean simply any delimited space that we may set out to examine and interpret – this could be an event, a social or political process or a cultural phenomenon, written words, a film.

2 Roland Barthes, ‘The Death of the Author’ in The Rustle of Language, Tr Richard Howell, Basil Blackwell, Oxford, 1986, pp 52-53.

3 Ibid, p 54.

4 Roland Barthes, ‘Writing Reading’ in The Rustle of Language, op cit, p 31.

5 See the work of Rajeev Bhargava, Gurpreet Mahajan, Neera Chandhoke, Sarah Joseph.

6 For instance, D D Basu.

7 Shibanikinkar Chaube, Constitutent Assembly of India: Springboard of Revolution, People’s Publishing House, New Delhi, 1973. Sobhanlal Datta Gupta Justice and the Political Order in India, K P Bagchi and Company, Calcutta, 1979.

8 Sudipta Kaviraj, ‘Democracy and Social Equality’ in Tansforming India, Francine Frankel, Zoya Hasan, Rajeev Bhargava and Balveer Arora (eds), OUP, Delhi 2000, pp 90-91. 9 Sudipta Kaviraj, ‘Dliemmas of Democratic Development in India’ in Adrian Leftwich (ed), Democracy and Development: Theory and Practice, Polity Press, Cambridge, 1996, p 132.

10 Sudipta Kaviraj, ‘Democracy and Development in India’ in Amiya Bagchi (ed), Democracy and Development, St Martin’s Press, London, 1995, p 99.

11 Lok Sabha Debates, Part II, Vol XII, May 18, 1951, columns 9070-71 and 9074.

12 Ashis Nandy, ‘The Politics of Secularism and the Recovery of Religious Tolerance’ in Veena Das (ed), Mirrors of Violence:Communities, Riots and Survivors, OUP, Delhi, 1990.

13 Nivedita Menon, ‘Women and Citizenship’ in Wages of Freedom, Partha Chatterjee (ed), OUP, Delhi, 1998.

14 Jawaharlal Nehru, introducing the first amendment bill, Lok Sabha Debates, Part II, Vol XII, col 8830, May 16, 1951.

15 S P Mookerjee, Lok Sabha Debates, Part II, Vol XII, May 16, 1951, col 8838, Kamath, col 8916.

16 Shri Kamath pp cit, May 17, 1951 columns 8912-8913.

17 Sunil Khilnani, The Idea of India, Hamish Hamilton, London, 1997, p 26.

18 Op cit, p 28.

19 Op cit, p 34.

20 Ibid, Sumit Sarkar and Rajeev Bhargava offer an alternative reading of Indian democracy’s emphasis on universal adult franchise which they see as remarkable, both for its break with colonial practice as well as with Europe in general, where class and gender limitations to suffrage took over a century of struggles to end. Bhargava emphasises the nationalist EPW Economic and Political Weekly May 1, 2004 1819 acceptance of universal suffrage as a significant break both from colonial rule as well as from traditional Indian society. Both attribute this largely to ‘the sheer sweep of mass movements’ (Sarkar, ‘Indian democracy: The Historical Inheritance’ in Atul Kohli (ed), The Success of India’s Democracy, Cambridge University Press, Cambridge, 2001, p 30) and to ‘the growth of the idea of the nation’ (Bhargava, ‘Democratic Vision of a New Republic: India 1950’ in Transforming India, Francine Frankel, Zoya Hasan, Rajeev Bhargava and Balveer Arora (eds), OUP, Delhi, 2000, p 51). Thus what Khilnani understands as arising from lack of informed understanding – that is, the inability of the Indian elites to comprehend the fear of the masses that characterised the European bourgeoisie – is seen by Sarkar and Bhargava, correctly, in my opinion, to be a feature of the particular configuration of democracy in India, that is, the anti-imperialist impulse of Indian moves towards democracy.

21 Op cit, p 36.

22 Rajeev Bhargava, ‘Democratic Vision of a New Republic: India 1950’ in Transforming India, Francine Frankel, Zoya Hasan, Rajeev Bhargava and Balveer Arora (eds), OUP, Delhi, 2000.

23 Gurpreet Mahajan, Identities and Rights: Aspects of Liberal Democracy in India, Oxford University Press, Delhi, 1998, pp 155-58.

24 Op cit, pp 4-6.

25 Here Sarkar seems to be using 'postcolonial' simply in the sense of 'after' colonialism. I use postcolonial in a different, more specific sense later.

26 Sumit Sarkar, ‘Indian democracy: The Historical Inheritance' in Atul Kohli (ed), The Success of India’s Democracy, Cambridge University Press, Cambridge, 2001, p 25.

27 Op cit, p 23, p 46.

28 Op cit, p 24.

29 Op cit, pp 26-27.

30 Op cit, p 26.

31 We may note in passing that even in Europe there may have been just “one blissful moment in the long history of capitalist development”, after 1689 in the “unique historical constellation in Great Britain”, that the public sphere was actually practised (Jurgen Habermas, The Structural Transformation of the Public Sphere, MIT Press, Cambridge, MA 1989 p 79). Otherwise, Habermas’s outlining of conditions for the survival of a public sphere that can only be met by advanced capitalist countries has come in for critical attention, for in this understanding, both the growth of monopolies as well as of the labour movement threaten the public sphere. In this context, Habermas’s assertion that “Laws passed under the ‘pressure of the street’ could hardly be understood any longer as embodying the reasonable consensus of publicly debating private persons” is telling (cited by Warren Montag from Strukturwandel der Offenlichkeit, Hermann Luchterhand Verlag, Neuwied, 1962, p 147). See Warren Montag, 'The Pressure of the Street: Habermas’s Fear of the Masses' in Masses, Classes and the Public Sphere, Mike Hill and Warren Montag (eds), Verso, London, 2000.

32 From the title of Chapter 11 of A Possible India: Essays in Political Criticism, OUP, Delhi, 1997.

33 Editorial note by Bill Ashcroft, Gareth Griffiths and Helen Tiffin in The Post-colonial Studies Reader, Routledge, London, 1999, p 117.

34 The following discussion is based on 'Beyond the Nation? Or Within?' EPW, January 4-11, 1997, pp 30-34, where Chatterjee initially worked out this distinction.

35 Upendra Baxi, ‘Constitutionalism as a Site of State Formative Practices’ in Cardozo Law Review, Volume 21, February 2000, No 4, pp 1184-85.

36 Op cit, pp 27-28.

37 The example of a democratic secularism that Sarkar gives is of 16th century France, which does not help us address the Indian dilemma, op cit, p 33.

38 Chantal Mouffe, 'Politics and the Limits of Liberalism' in The Return of the Political, Verso, London, 1993, p 140.

39 For details, see Granville Austin’s scholarly yet lively account in Working a Democratic Constitution: The Indian Experience, OUP, Delhi, 1999, pp 40-42, 69-86.

40 Lok Sabha Debates, Part II, Vol XII, May 16, 1951, columns 8815-16.

41 Sudipta Kaviraj, ‘A Critique of the Passive Revolution’, Economic and Political Weekly, Annual Number, 1988. Since the 1980s the economic policy has changed dramatically, but in this essay we focus on the earlier moment.

42 In 'Critique of the Passive Revolution', op cit, written in 1988. Fundamental changes in economic policy since the 1980s reflect developments in the nature of the bourgeoisie, which it is not possible to go into here.

43 Sudipta Kaviraj, pp cit, pp 48-55.

44 Lok Sabha Debates, Part II, Vol XII, May 17, 1951, col 8906.

45 Ibid, col 8901.

46 Ibid, 8952.

47 Ibid, May 16, 1951, columns 8830-1.

48 Ibid, May 18, 1951, col 9083-4.

49 Ibid, May 30, 1951 col 9685, 9687.

50 Cited in Granville Austin, op cit, p 104.

51 Lok Sabha Debates, Part II, Vol XII, May 17, 1951, col 8965.

52 Ibid, col 8996.

53 Ibid, May 16, 1951, col 8823.

54 Ibid, May 31, 1951, col 9797.

55 T N Singh, ibid, June 2, 1951, col 10070.

56 Ibid, col 8823-8829.

57 Ibid, May 18, 1951, col 9073.

58 Ibid, May 16, 1951, col 8840-42, 8846.

59 Ibid, May 17, 1951, col 8894-95.

60 Pandit Thakur Das Bhargava, ibid, May 30, 1951, col 9717.

61 Rev D’Souza, ibid, col 9692.

62 Mirza, ibid, June 2, 1951, col 10064.

63 Ibid, May 31, 1951 col 9790.

64 Ibid June 1 1951, col 9844-45.

65 Ibid, May 31, 1951, col 9790.

66 Ibid, June 1, 1951, col 9861-62.

67 Ibid, 9867-68.

68 Partha Chatterjee, ‘Whose Imagined Community’ in The Nation and its Fragments, Oxford, India, Paperbacks, 1995, p 11.

69 Martin Fuchs. ‘A Religion for Civil Society? Ambedkar’s Buddhism, the Dalit Issue and the Imagination of Emergent Possibilities’ in Vasudha Dalmia, Angelika Malinar and Martin Christof (eds), Charisma and Canon: Essays on the Religious History of the Indian Subcontinent, OUP, Delhi 2001, pp 252-60.

70 Upendra Baxi, ‘Emancipation as Justice’ in Upendra Baxi and Bhikhu Parikh (eds), Crisis and Change in Contemporary India, Sage Publications, Delhi, 1995, pp 143-44.

71 Ibid, col 8820-8821.

72 Lok Sabha Debates, op cit, May 16, 1951, col 8821.

73 Op cit, May 17, 1951, Thakur Das Bhargava, col 8894, Syamnandan Sahaya, col 8929.

74 Op cit, May 18, 1951, col 9084.

75 Op cit, May 29, 1951, col 9642.

76 Op cit, May 17, 1951 col 8929.

77 Op cit, May 18, 1951, col 9006-07.

78 Op cit, May 29, 1951, col 9616-9617. 

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