India and the Constitution of the postcolony” – Law School Policy Review

Uday: Good evening, everyone. We are students of National Law School of India University, and editors and observers of the Law School Policy Review. Today, we are here to interview Professor Dasgupta Sandipto Dasgupta on his book, ‘Legalizing the Revolution: India and the Constitution of the Post Colony’. Professor Dasgupta, before we begin with the podcast, how do you feel your book has changed the narrative on the emergence of post-colonial constitutionalism since it was published?

Professor Dasgupta: First of all, thank you for having me. To answer your question, I don’t know if it has changed the narrative yet, since one book is really not enough for these things, but the attempt was to do something of that kind. Since I was a law student, and broadly since the late 1980s, there has been this one set way of thinking about constitutions globally, and in the post-colonial world, which is an extension of the model of the American Constitution. It was a set of desirable norms, with this given template, which each country had to try and adopt some version of. The spread of global constitutionalism was seen as the progressive adoption of these norms across the world. These norms were independent of the particular social, historical or political context of those countries. My attempt was to go back and draw from another tradition of constitutionalism, which goes back to the second world war, or before that, and which I think is more relevant to the case of India. Understanding how the Indian Constitution was made and how it’s supposed to function means thinking of it as an extension, a result, and a product, of the anti-colonial political struggle. It’s a result of that particular political struggle, informed by that struggle, and involves the process of institutionalizing the gains of that struggle, and building a new kind of political reality based on it. I think it’s a different way of thinking about constitutions. The more common way is to think of them as a template of norms, and is often derived from American Constitutional Studies. The other is thinking of a constitution as part of this longer historical process. Constitutional theory and constitutional studies, as you might know as law students, are very much informed by the first (Americanized) model, even in India, and very much across the world. And so my book was an attempt at trying to think of it in another way. I’m part of a growing, but still a minority group of scholars who try to engage in this other way of thinking about constitutions.

Uday: That’s a very interesting way of looking at things. Let’s begin with the title: ‘Legalizing the Revolution’. Doesn’t the title suggests an inherent paradox? Revolutions aren’t typically recognized by states. So in the era surrounding the time in which the book deals with this concept, how do you think the phrase “legalizing the revolution” emerged in India, and what were its origins?

Professor Dasgupta: It’s not a phrase that people then talked about, it’s not something that came up then. It’s a phrase that I tried to give to the phenomenon I saw. I wanted to work on the Indian constitution, as I said, a bit differently. I didn’t want to look at the principles, or in a juridical way like how the courts looked at it, but to think of it as a part of this large historical process following the anti-colonial independence movement. And in doing that, I realized that in the Constituent Assembly debates, there was a lot of use of the word “revolution”. This is not something we would normally imagine to be the case. In  politics, we never talk about our independence movement as a “revolution”. The Congress doesn’t call its members “revolutionaries”. Yet the term is brough up a lot in the Constitution. The word “revolution” appears in the Constituent Assembly, as I say in the book, as having two possible meanings. One is a revolution as an unruly, untidy eruption of events, something you can’t control, something you can’t really predict, and something that would change a lot of things. It could come, as some fear, from the unrest of the masses who are still upset about the things that haven’t changed enough after independence, like because there hasn’t been enough equality or enough freedom for people. To pre-empt or to stop that kind of revolution, we need another kind of revolution. The first kind of revolution is the way we think about unruly, momentous events like the French Revolution or the Russian Revolution. The other way is to generate a more planned way of creating massive social change. We often think about “revolutionary technology” in this way, as something which has caused a lot of change, but not in a way that caused mass unrest. And so the question becomes, can we have a revolution in that second form, while making major changes in society where we address these concerns about economic inequality, lack of growth, stagnancy, oppression and so on? There is a lot of discussion in the Constituent Assembly about these two forms of revolutions, and how they would do the second kind of revolution, the managed revolution, to stop the first kind from happening. That’s the kind of revolution they want to do, through the law. The law and the Constitution then became a mode, a form in which the second kind of revolution could be achieved. That’s where I realized that one way of representing this task, this ambition, which I think was the central ambition for the Constitution makers, was to legalize the revolution. In other words, to do this huge, ambitious social change through legal means, through planning development. Land reform, private and public sector industrialization, nationalizing industries, creating new companies and company towns, all of these come under this attempt. The point was doing it, not outside the Constitution, not on the streets, not through unrest and unruliness, but through careful planning by actors of the state, very much within and through the Constitution. That, for me, was the central motive of the Constitution: legalising the revolution. And just to go back to your earlier question, that’s the contrast with other ways to think about the Constitution. We often think it’s about limited government power, or rights. But what is the central core sort of the project of constitutionalism? In my opinion, it is this need domesticate and legalize this massive social change.

Uday: Regarding the point of introducing social change, on page 10 of your book you introduce the concept of transformational constitutionalism. Given the idea at that point, that constitutionalism first emerged as writing down the ideals and principles on which a nation shall exist, how do you feel revolutions exist within and alongside transformative constitutionalism, both then and now?

Professor Dasgupta: I think, as I say in the book, in the introduction to the part which you’re quoting from, that “transformative constitutionalism” is a term which comes from the Assembly debate itself. It’s not a term I want to impose on the situation, but I use it because they keep talking about it, about this idea of achieving transformation without destabilizing the order. What’s interesting about that is there is this other idea of constitutionalism, which comes from American and British traditions, and which is the dominant way in which we think about constitutions today. Over the last 30-40 years, the only way we think of constitutionalism is more or less that constitutions are meant to create limits and order. A constitution limits what the state can do and creates some kind of an order, a system within which we can all function. What is fascinating about the Indian constitutional project, and most of the newly independent countries around this time after Second World War, which are coming into being is that for most of them, the main principle around which they wanted to build a constitutional structure is not limit, but change. Their starting point was not limiting things, but changing and transforming them. This big distinction between limits and change alters the very idea of what the constitution means, so the whole structure which follows from that is quite distinctive. This category is what I want to call “transformational constitutionalism”, which is a constitutional structure that develops through controlled, gradual change, change which is within the law, but change nonetheless. How we think about the interactions of constitutional and legal principles is what the second half of the book is trying address. How do aspects like courts, property, rights, and parliamentary proceedings change now, in this institution, that we are familiar with? How can we rethink those institutions, if we think of them from the starting point of transformation rather than limit?

Uday: On the topic of change, on page 13, you introduce the point of land reforms being calculated by the state, which actually culminated in the change of social order without a revolution, without the bloodshed. So considering that, we usually assume that constitutionalism emerges out of the state in a top-down fashion, why was it that land reforms went uncontested in this form of constitutionalism?

Professor Dasgupta: So I don’t think the land reform story, which I have in more detail in chapter seven, the property chapter, is necessarily a success in India. And this is not just my opinion, there is a subset of literature in social science, which deals with the limits of that reform. The important point about land reform is that it was part of the Congress proposal from the 1930s onward. It’s something they would have had to do anyway for practical reasons, not just because they were good people or benevolent leaders. Land reforms are fundamental for two very important reasons. One, because under the British system, especially in north India, there were zamindaris, who were these massive landlords, and who were generally deeply unproductive. They were not entrepreneurial farmers who invested in the land and increased productivity and thought of new crops. These were people who typically did not even live in the villages, who often lived in the cities, collected rent from of the land, and did not invest in anything. This was a problem for economic growth. And this is a worldwide phenomenon: every major country in Asia, like Japan, Korea, or China had a land reform first, because they could not have good economic growth with these unproductive landowners. This is something you would see from the 1930s onwards worldwide. Even the people who were not socialists, like in the Bombay plan, talked about land reform. The other reason is more of a reason of equality. The peasant system in India was deeply, deeply oppressive. If you read novels by famous writers, some of whom I cite in the book, like Prem Chand or Manik Bandyopadhyay, you can really see how oppressive village conditions were vis-a-vis the landlord and the peasant, and how much the nationalist movement took note of that. From very early on in the Congress, 1920s onwards, you would hear talk about how landlordism is a problem for India, and how the peasants have to be liberated from it. So both on the point about economic growth and on equality, land reform was perhaps the single most important policy question for the new government. Again, this is just not India, there existed a very similar kind of problem across the whole post-colonial world. Now if you go back to our broad framework of transformation constitutionalism, you see that you have to do this land reform through legal and constitutional means. You can’t have a peasant rebellion, you can’t just burn down the houses of landlords and take away all their land, which is the idea of what peasant rebellions are. You have to do it in a legal way. And that’s why, in the Constituent Assembly, land reform was one of the longest discussed policy issues. The property question, which follows from that, under Article 31 at that time, became the longest discussed article, with a three and a half year long process of drafting. And also, all the new Congress ministries that came into place were passing land reforms. The first major judicial challenge to the Constitution was on the question of land reform. One of the earliest cases, the Kameshwar Singh case in the Bihar High Court, is on land reform. Literally two months after the Constitution was passed, you had the court striking down a law based on the Constitution in March 1950, and this law was on land reform. All the major litigation, the most significant and most content-heavy litigation on the constitution has been on land reform. But when we teach in constitutional law classes, we don’t make this a major issue. We tend to think in terms of fundamental rights, separation of powers and judicial review, but land reform was the single most contentious issue, both politically at that time, and in the framing of the Constitution. It really shaped the Constitution in a fundamental way. That’s how, in my view, land reform affected the Indian constitution enormously. And it’s not necessarily something which comes from below. Actually, the way of doing land reform from below would be through a peasant rebellion, something like all the farm peasants in different parts of the country coming together. Or it would be something like what happened in Telangana, for example, while the Constitution was being written. During the Telangana peasant revolt, the peasants took up arms and took away the land of landlords, and had land reform their way. They wanted to avoid this revolution-style land reform, and to avoid it they had to do a very disciplined form of land reform from above, through the Constitution, through all these land reform laws. So from below or from above is another way of thinking of these types of revolutions – the most unruly, uncontrolled revolution, versus this gradual, planned transformation.

Uday: At the same time, as you mentioned other countries and other post-colonial interventions happening around across the world, where new, newly decolonized countries were beginning to form their own constitution. At the same time, the Cold War was also taking place. I think you’ mentioned it in your book, in the first half, that the Cold War was influencing the ideals of how comparative post-colonialism was emerging vis-a-vis constitutionalism. What would you say it’s impact has been on land reforms, and on Indian colonial studies?

Professor Dasgupta: I think this is a very important thing, and something which we are only beginning to study properly now. In a couple of ways, the Cold War was actually very important overall globally. If you look at the process of decolonization Africa, the Cold War had an actual impact. Global superpowers like America were meddling in the affairs of other countries, governments were being overthrown, think of Iran or Congo, people were being assassinated, and proxy wars were being fought. India, because it was a big enough and strong enough country at this point didn’t really have any of that. So we did not have an actual political problem because of the Cold War, unless there was some proximity, like the Bangladesh War, which we were affected by and got involved in. But Indian political systems were impacted by the Cold War. While we don’t have the problem of direct involvement, what we do have are ideological frameworks shaped by the Cold War, that really inform and shape the way we think about things. We may not always see that as a Cold War fact, but I think what the Cold War did, quite tragically for these newly independent countries, was that it kind of cut short their creativity. You kind of had to take one or the other side, when often you didn’t even want to. There are many countries who were not necessarily communists, but who had to side with the Soviet Union because America was interested in something else. So you had to make this choice, and you had to choose ‘System A’ versus ‘System B’. One of the things I wanted to capture in the book was the sort of newer, distinctive creative attempt, at creating post-colonial institutions. That part of the book, however, was really short, and very often you were made to believe that either you are on this side or that side, or there’ll be a coup, there’ll be an uprising, and so on. And that’s the thing, the deep tragedy of the Cold War, constantly repelled countries, and that really curtailed their creativity. As I said, that didn’t really happen in India too much, but there was an effect of that, and ideologically, I think what it did was create a dichotomy:, you either thought about constitutionalism and the liberal American way, right, or you were on the side of communism, and against freedom. So, in other words, to be considered a member of what was called the ‘free world’, you had to think of constitutions in the Lincoln government American, merits and rights way. And I think that became part of this story where, as I was saying earlier, constitutions were understood only in this is very narrow template, and either you buy that whole package or you don’t have constitutional at all. I think that kind of very simplified binary choice of what constitutions are is very much a Cold War product, where the American side, the free world, was associated with a particular idea of what constitutions are. This was as important for us, as scholars of constitutions, because constitutional scholarship was very, very much affected by this. I cite some literature from the 1940s, 50s, and 60s, where everybody is saying “This is what constitutions are, and if you don’t buy this, you are on the other side of the world.” And there’s a very good book on this by a friend of mine called Aziz Rana, who is a Professor Dasgupta of law here in the US and Boston. His book basically shows how in the beginning, what was called the American empire after the war, was very much associated with this particular idea of the constitution. So constitutionalism is one of the main pillars of American power, and that’s how it gets caught up in the Cold War, very fundamentally, which is again something I think we are only now fully understanding.

Uday: So at the same time, I find it very ironic that countries on both sides of the Cold War, both the US and the USSR, emerged through revolutions and shining the ideals of both popular sovereignty as well as economic sovereignty. Given that we didn’t have a revolution which was considerably consolidated around the points of popular and economic sovereignty, how would you feel the Indian Constitution has brought in these ideals, regardless of how these of how the Cold War has impacted colonial rule?

Professor Dasgupta: So, the thing is, I think the Soviet Union and the United States, the America and the Russian Revolution, are not necessarily on those kind of questions. They had their own driving factors, because they are from different moments. So one was about communism, and the other was about secession for liberation of the empire and about self-government in a different way. The questions of popular and economic sovereignty are very much questions of what can be called anti-colonial movements. Almost all parts of Asian Africa, with some very minor exceptions, like, say, Japan or something, were under colonial rule, either directly, in the case of India, indirectly, like China. The main two goals these countries might have had when they wanted independence, or freedom from the Empire, was political and economic sovereignty. So political sovereignty, of course, will be the easier one to understand. You have this foreign power which comes and ruins us, we want self-government and self-domination. That’s political sovereignty. What that looks like, generally, in the post-colonial context, was also popular sovereignty. And popular sovereignty, I think, is very much a central element of anti-colonial movements for a very simple reason. What is the colonial argument for why the British had any say in India? Why did the British have to be in India? Because their argument was “Indians can’t govern themselves. They don’t have the political capacity or the maturity, they are too backwards and not advanced enough. They can’t govern themselves. If we leave, they’ll fight amongst each other, and they will kill each other, and there will be disorder, and so they don’t have the ability to govern themselves.” Against that, what were the Congress and Gandhi saying? They were saying “No, we do. Look at us. We can have an organization, we can have discipline, we can organise rallies and movements, all of which tells you and shows you that we can govern ourselves. So leave our country, and we will govern ourselves based on popular sovereignty.” In other words, one side is saying the Indian people can’t govern themselves. The other side is saying they can, and therefore they should be the real sovereigns, and not the British crown. And this is very much a version of events which you see in every other anti-colonial struggle. Because the Empire always claims its power based on the lack of the ability of the people to govern themselves, therefore the counterclaim has to be popular sovereignty, which is logically the opposite of that. So popular sovereignty becomes the basis on which almost all anti-colonial countries achieve independence and write their constitution. Even those that become, dictatorial authority, like in Iran, nevertheless claim it in the name of the people. No one really says it’s in the name of a king, that’s only in a few cases, like, say, Saudi Arabia or the Gulf countries, or in some countries in Africa you have some like Swaziland. In very, very few cases, does the right go back to a king or a chief or a prince. It’s mostly popular sovereignty. The problem is this, though: let’s say today you’re independent politically. That’s the easier part, because you can actually point that out as which point in time the British flag went down and the Indian flag came up, and so on. The question is, are we economically independent? And what does that mean? Colonialism was not just the fact of British coming and ruling India, the way we think of it, this classic model of the bad British ruler coming and punishing. It was also an economic system, which is a global economic system, and is much more significant, in some senses, than political domination, because, it was a very deep spread out global economic system. And the ways in which industrial production worked, the resources we take in from the colonial world, the way finances and money and debt worked all formed a complicated net. Why do you think Gandhi, along with Swaraj, also had the Swadeshi movement? It was to sort of build Indian industry, buy Indian goods, and create an economy. So the question of economic independence was as important, in the anti-colonial movement, as political independence. And in some ways, it’s harder to get, because now you’re not just talking about throwing away one sets of rulers and having a new government, but about recreating an economic structure which has been in place for hundreds of years, which was the Imperial economic structure. You have to now create Indian industries. You have to create, Indian firms, and remove India from its deep relationship with British banks, and British industries, and debt. The British owned parts of our railways, the British owned most of our companies and their managing structure. How do we open that up? How do we disentangle that? This is a problem India faces, that every single Post World War country face, and this always proves to be a larger and more difficult challenge. And part of this transformational constitutionalism question is also to therefore say that independence is not just political. We can’t stop with that. That’s very important, extremely important. We can’t just stop with that. We have to go further, to gain some degree of economic independence, otherwise, we’ll still be, in some senses, answerable to the European powers, because they still own most of the economic resources in our country. Part of the transformation of transformational constitutionalism was to gain economic independence as much as political independence.

Uday: When we talk about political independence, you mentioned that the Indian leaders created mass movements, and how those were depoliticised to bring the constitutional ideals of the people and not just those of the ruling class. In the second part of your book, you talk about the constituent administrator, which was a bureaucratic class that shaped how constitution and governance interplays with the local factors of the polity. So, when we talk about modern movements, and especially movements regarding constitutional ideals like equality, political freedom, and even corruption since the 90s, how would you say this bureaucratic administrator has depoliticised mass movements and how does it relate to the constitution in addition to the court’s rule?

Professor Dasgupta: It’s a 1950s issue, but even going back further, this is the main dilemma of the anti-colonial movement. The Indian anti-colonial movement began with a very small urban professional class, in the late 1870s, with the formation of the Congress and the various Sabhas. This is a class which is often called the “constitutional liberal class”, they were the beginning of any kind of modern anti-colonial movement. They were asking for some rights within the empire, doing petitions, they don’t really do mass movements, and don’t entirely trust mass movements. Their idea was that if they asked the British state nicely they would get what they wanted. But that was not the case, and the movement was more or less a failure as a political cause. Then after the first World War, with Gandhi, we started having a mass movement, which was a big change in the nature of the anti-colonial movement, because now you were not just meeting amongst small elite groups in cities and writing petitions, you were actually mobilising the masses, going on the streets doing huge rallies, sit-ins, dharnas, hartals, and so on. And at this time the Congress transformed itself from a party of small urban professionals to an enormous mass party, perhaps the largest mass party in the history of the world. It stood from all the small villages all the way to the big central cities. And that was successful, which was why we even had the conversation about gaining freedom. There is often a misunderstanding that India was granted freedom because the British were too weak after the first World War, when really it was because India became ungovernable because of the success of the Congress as a mass movement. As they got more successful, there arose a worry among certain sections of Congress leadership, sections that became known as the “Congress Right”, people like Vallabhbhai Patel, or C. Rajagopalachari, or K.M. Munshi, that the mass movement was so successful that there would be too much unrest. The demands of the masses were not just limited to removal of the British. They were also about other things, like economic justice, or ending zamindari and debt bondage, which went far beyond what the Congress wanted to limit itself to, which was just political independence. That was the period when people like Patel lead the Congress more towards just the State. They wanted to forget taking to the streets in mass movements, and wanted to control this situation from within the State and the government. The last 5-7 years preceding independence show this shift within the Congress, away from acting as a mass party doing hartals and dharnas, and towards doing more negotiations, to become a government in waiting, train bureaucrats, create a ministry, and work through the State rather than outside and against it. And once you do that, the main actors become the bureaucrats and administrators, who were trained by the British government. India had a very well-trained cadre of bureaucrats, as a large state, through long traditions like the Indian Civil Service that put out trained state officials. And those were the people that the Congress and leaders like Patel now depended upon to be the major figures of building a new India. These were the bureaucrats who we now know as very important, people like, say, B.N. Rao figures in this moment of building a new India. In other words, as opposed to mass popular politics to say build the nation, which Gandhi’s ideas were a part of, to create new people and a new society, now all of those things would be done through a carefully planned technocratic administration. The planning commission is a version of that, and much of it is very state-centric. This is the version we get to know in India after independence, it becomes very much about the bureaucracy and the state as the most significant figure in any kind of change. We were talking about land reform earlier; you can do land reform through mass movement, like in India in Kerala and West Bengal, you had mass cadre-based movements through the Communist Party, which ended zamindari. But in most parts of India, in Karnataka or Uttar Pradesh, it became a bureaucrat driven thing. The main way in which the transformational project would happen, the main protagonist of the transformation project, would in one version be the people and the masses. But in the version which was adopted by the Congress and the Indian elites centred the administrators – bureaucrats, police officers, planners, basically officers of the state – as the protagonists. 

Uday: So in addition to this bureaucracy and technocracy debate, how would you feel that since globalisation new liberal influences has impacted how the Indian state views its own bureaucrats both as tools of its own power as well as agents of constitutionalism?

Professor Dasgupta: This is a very good question. Absolutely, neoliberalism changes things in a very big way.  And of course the book doesn’t really come to that point and is more focused on the 50s, but I do look at independent India up to the 70s, but the 90s, where neoliberalism came out, was a bit far. But it’s a very important thing to ask because in some cases it does or does not change. Something I think is very clear in India today is that the main “professional class”, which includes not just the bureaucrats but academics, journalists, etc., was extremely significant and important during the independence. This was the administrative class which had a nation-making vision, and were in some way the leading group in terms of nation making. This class has more or less (this is a very simplified understanding) been replaced by the capitalist industrialist class. Most of these professionals are not professionals in the state as administrative bureaucrats, but as corporate managers. There has been a huge shift in that class and in the meaning of administration and management. The state has broadly given up this space to private capital, which was not the case during independence because Indian capital was neither strong nor big enough to drive the process. This doesn’t mean the state has become smaller or less powerful, but rather that the state does different things now. The state now aids in the functioning of capital and business and provides support for that, as opposed to something that stands apart from and disciplines that. It’s a different relationship, especially to private capital. The landlord relationships are especially different now, although this doesn’t mean there are no big landowners, just that they are not the same thing. The huge distinction here is the relationship of these bureaucrats and the professional class with the capitalist class. The difference is that they were not so much in service of the capitalist class before, and were more discipling them. That is, I think, a big shift in both what the administrators do, and also where they are in relation to other groups. And this idea of state-driven transformation had run its course by the 80s, I would say. There was an attempt, in the 80s and 90s, to read the Indian constitution anew (although not re-writing it) in the traditional liberal and American way, where the constitution is there to create a stable, predictable structure for the functioning of the capitalist economy. This included the global constitution movement, the rule of law movement, which the IMF, the World Bank, and the UN pushed in the 90s and onwards, and the Indian constitution is often seen that way. I think there is a problem with that, because that is not how it was written originally. There was a massive reimagining of its meaning. The problem is, it still does not look like that – property is still not an absolute right in India, and the state has other checks and balances, and it has its own powers. The actual Indian constitution had to be reimagined as something like the American constitution. This created a stable structure for the flow of the market and private capital. It evolved from a constitution which was an instrument to create major social change to a constitution which was there to stabilise and create modern market conditions. That was the post-liberalisation idea of what the Indian economy is and what the constitution is. But I think we keep having these conflicts and contradictions because that was not how the constitution was designed originally. This new idea of what the constitution is and what it should do doesn’t necessarily sit with the history of the constitution itself because the project was so different after independence.

Uday: And would you say the same about the judiciary’s role in solidifying when you say that we now have an extremely stable structure about constitutionalism? Would you say the judiciary still plays the same active role especially in the last 20 years?

Professor Dasgupta: I don’t think the constitution is a very stable structure in India, because this contradiction between its own history and the way we think it should function today. There are two ways of thinking about the judiciary. One is: the judiciary has a much longer story of conflict with this idea of the constitution. The story in chapter 8 of the book, which is on judiciary, explains that this idea of transformational constitutionalism, where the constitution is an instrument for a state-driven and directed planned social change, never sat well with the judiciary, for a very simple system: this idea marginalises lawyers and the judiciary from major constitutional roles. What judicial lawyers like to believe, is that the constitution is primarily a subject for them – lawyers and judges are the ones who really understand what the constitution is. The laypeople outside don’t understand the constitution, but we, the lawyers, are the keepers and true interpreters of the constitution. If you want to talk about constitutional politics, that really lies and unfolds within the courts. Outsiders don’t understand the constitution. It’s a legal document, and it’s for us to understand and interpret. The moment you say “No, the constitution is really about facilitating social change by administrators and by planners,” then you become a secondary actor. The main actors are the administrators, planners, and technocrats who have been using the constitution to create plans and social change. And from the very beginning, what I was mentioning earlier about the land reform cases, you see a conflict between that idea of constitution, which is the idea of the constitution shared by Congress leaders and shared by the Assembly itself, which is the constitution as a vehicle of social change, and the lawyer’s idea of the constitution, which is what the courts bring. Why did we have the first amendment withing the first year of the constitution coming into place? From the very beginning, the way these people think of the constitution and this new distinctive transformational constitutionalism where the administrators are the main actors, and the way judges think of the constitution, in the much more traditional common law sense (drawn more from the British experience in common law, where the judges are the main and most important actors), there is a conflict between the two. This is not necessarily an ideological conflict, where someone is on the right or the left.  It is more a conflict about who is the more important figure, judges or administrators, like an institutional conflict. Much of the constitutional conflict, going all the way up to Keshavananda Bharati (where judges are essentially saying they have the final say in what the constitution is), and the lead up to that with all the land reform cases, are leading up to this main question: are we the main actors or are you the main actors? That’s a long debate and battle, but I think the judges kind of win that battle, as in the Keshavananda Bharati case after which these kinds of battles did not really come up again. The judges, in a way, won this battle on who gets the final say on what the constitution means. It’s around this same time that we have the end of the transformational constitutionalism project. That’s one story on the judiciary and the constitution which I tell in the book. The other perspective to look at is in the last, say, 20-30 years especially after liberalisation. Judges have moved towards a more market-centred idea of law or rule of law constitutionalism, which can be seen through many cases. On the other hand there has been another interesting way in which judges have not asserted themselves, which is in the question of civil and political rights. That’s one place where judges actually always had the space to serve themselves, even under transformative constitutionalism, but that they have done less and less in the last 10-15 years. That’s a different problem.

Uday: And at the same time, when we talk about our own constitutional journey, would you say that India’s constitution has impacted other post-colonial nations as well in the aspect of having a bloodless and legal revolution?

Professor Dasgupta: Yes, I think that’s very much the case. This is again not a question of opinion, there are a couple of important things that impacted this. Firstly, timing – India was one of the earlier countries, if we look at the independence of countries speaking 1945 or so, India is 1947, with most of the other countries including African countries coming later in the 60s-70s, so India is the pioneer in some senses. India has two other advantages for why it is so influential. One is the Congress, and the independence movement itself, which was seen as the exemplary ideal of anti-colonial movements. It was the biggest mass movement, the most organised party of the anti-colonial movement, it never compromised the British march. People across the anti-colonial struggle looked to the Congress as a model of how to do successful anti-colonialism, so India was already a model even before its constitution. The third thing is that India, because of its size and because of the Congress’s own strength, the Indian constitution was very much an independent process, and the British had almost no say in it whatsoever. That is not the same in most cases. In many anti-colonial movements and many post-colonial contexts, the departing colonial power had a big say on the constitution which was being written in some way or the other – you see that across Africa especially with the British and the French. This was also seen in the Cold War with the United States or the Soviet Union influencing from the outside. India is one of the cases where Indians actually write their constitution without any foreign influences, not of the British, or the US or the USSR. To the extent Indians looked at other constitutions, like B.N. Rao who looked at American, Irish, and other models, they did it on their own terms. No one forced them to. India, therefore, became a case of a post-colonial constitution written entirely by Indians themselves autonomously, after a successful movement with a very large organised party at an early stage of decolonisation. For all these reasons, India is seen by many as the exemplary post-colonial constitution, and has had a major legacy in that sense across the post-colonial reason. Another point, which I think you mentioned correctly, is that ambition of having a revolutionary change without the revolutionary struggle is shared by many post-colonial elites. You have a similar attempt in countries like Egypt, like Ghana, like Indonesia, countries which are big enough to do that. You have one model of anti-colonial struggle like China, Vietnam, and Algeria which set about armed revolutions. And the other model, which is more about a peaceful transition, India is the exemplary version of that. And that ambition is shared by many countries – the three I mentioned are just the three most well-known examples of that, but there are many other examples of that, like Senegal or countries in the Caribbean. That project is the same, which is why their constitutional questions are often quite similar.

Uday: So, when we go and compare how this bloodless revolution aspect has come up again and again in your book as well as in India’s constitutional journey, would you say that attempts to undo revolutions in other countries were taken care of and were somewhat foreseen by our own constitutional leaders, which is why we didn’t see our own constitution failing?

Professor Dasgupta: You mean in terms of coups and stuff afterwards?

Uday: In coups as well as obedience to the constitution. What brings the Indian constitutional spirit out?

Professor Dasgupta: That’s actually a very good question, I think. Something we don’t tend to remember enough is that India is exemplary as one of the very few post-colonial countries, if not the only one, where there hasn’t been a military leadership or coup which overthrew the constitutional structure, excluding the Emergency (which was not exactly a coup or military leadership, and was quite short-lived compared to other countries). No matter how many amendments to it, we still have more or less the same constitution. It is the longest lasting in-force constitution, and looks pretty much the same from the beginning even with all its amendments. The basic structure remains more or less the same. That’s quite a remarkable thing, and your question has to be answered on this. Part of it is to do with the constitution itself, because the constitution kind of understood that it can’t be inflexible, it can’t demand order and that’s it. It had to understand that there are all these sources of unrest, all these ambitions and aspirations that are unfulfilled, and has to be flexible enough to accommodate. I have this quote, by the Assembly actually, that says it (the constitution) has to bend or it will break. Because it’s a complicated situation, we cannot just impose one thing. And I think the constitutional model allowed for that kind of space. Some of the answers about India’s longevity and stability are not just to do with the constitution. They are to do with two other very important things. One is, as I said, the exemplary success of the Congress in being a mass party and a party of all classes. I can give an examples of something totally opposite to this, like the Kuomintang in Chiang Kai-shek’s China, which tried to suppress the other voices and sides, and itself caused a revolution. The Congress was actually able to make space for all parties, and in a country as complex as India and as big as India, this was an extraordinary success that they would be able to have space for the biggest industrialists like Birla to the smallest peasants. The ability to find some way of accommodating all sides and not directly repressing anybody or the other, which creates its own problems, both regionally and in terms of class, it tried to at least be accommodating. Even if people knew that the Congress is eventually an upper-caste Hindu party, nevertheless it was open to the idea that we had to have a large accommodation. I think this gave the party an extraordinary stability, and gave India an extraordinary stability. The Congress, because it was such a popular and successful party, did not itself require force and did not need to go to the army to stabilise its role. It actually won elections on its own terms, at least when Nehru was still there. Even when it fractured, it did so in a way that it really did not need the army to step in and help out. I think that’s a very important role, of the Congress as a mass party. India is a continent – there is no other country in the world like it. It is not just large, it has all these different regions with different histories and languages, and the fact that it remains together is an extraordinary achievement, it’s not normal. And that required enormous levels of political skills, which I think the Congress did show, and which is why I don’t think we should assume that India will remain together forever – it shouldn’t, and it required a very accommodative, expansive, and very politically skilled structure which allowed for all the different sides to speak. I think that also helps us think about the stability of India as a polity beyond the just the constitution, but as the structure and political system which was built through the anti-colonial movement and sustained after that by all these different parts and classes.

Uday: So this is one observation I have made, which many first generation constitution scholars often make: one criticism of the Indian constitution and the common populace is that there is this general stereotype about brown rulers replacing white rulers post 1947. There is the stereotype that there was no exact conception of freedom and that the only page we did have was self-rule instead of foreign rule. Many second generation constitutional scholars and academic writers point out that despite lack of literacy on a huge scale during the first 10-15 years when constitution making was at its peak, we were still able to cultivate the appeal to work against the unitarian party format because, as you remarked, the Congress had created a stage where all members of society could come up. How would you defend this criticism against how constitutionalism has developed, the criticism being on literacy and the stereotype of brown rulers replacing white rulers?

Professor Dasgupta: This isn’t an either-or issue. There is a way in which you can argue that independence didn’t change enough – I think that’s a fair point, that it didn’t. There are a lot of people who remained powerful throughout. There is a reason why this is important, especially because often in India today debates become about whether the Congress is “good or bad”, whether Nehru was good or bad, and those are silly debates, not serious debates. A serious debate would be this: because you wouldn’t think of colonial rule as just these British officers in Delhi being cruel to Indians everywhere else, because colonial rule was set in an economic system and many people within said system were Indians themselves, like the Indian princes and landlords, these people were close to and supportive of the British. When Indians did the work of colonial rule as part of the economic system, all Indian business houses – if you think of national business houses like the Tatas and Birlas, they made their money doing business with the British. When we achieved independence, these people were still there, still all-powerful (the princes especially were all-powerful and were the number one supporters of the British), and essentially changed themselves to parliamentary rulers. The big landlords become local notables and powerful figures politically. A lot of the power structures in India did not change enough. So when people say we “Replaced which rulers with brown rulers”, that’s a simple way of saying “We thought that independence would be a much bigger change.”

Uday: As many would say, a utopia?

Professor Dasgupta: Exactly. I think in revolutions across the world there are ones with more or with less changes. India would fall somewhere in the middle, being not as continuous as most other countries but there were also countries which had huge changes after their independence. That is a fair point to make. Many of the people who were close to the British just became part of the new government, almost seamlessly. On the other hand, a point which is important to remember about India, and which is why the simplistic and binary “good or bad” is not useful, is that the Congress was truly a mass party, in a way in which there has not been another one in Indian history even today. It was not a mass party in a way that was electorally successful the way we would think of it today, with a mass party being determined by the percentage of votes.  The Congress was very successful electorally but that was not the only way they were a mass party. An example would be the Quit India Movement. The Congress leaders gave one call for a mass movement, and were all jailed the next day immediately, and yet the entire country erupts. That’s how strong the Congress’s popularity within the people was. And that was a very genuine thing. I think it’s wrong to see the Congress as just people who were just making deals with the British; they were not. They were all leaders who have gone to jail themselves, they were mass leaders. And what that meant was that even if a lot of the things remained the same, democracy in India was not a fiction. There were people who were, as you said, not literate, who could not understand what politics was or what the Congress was, who went to go give votes and show their interest. Even in India today you talk about how people who may not have the best literacy have a sophisticated understanding of politics and interests. They are not fools who can be swayed easily one way or another. And I think elites often think of the population that way, and I think that’s the wrong way to think about it. It was a long-cultivated practice which stems from before independence, from the Gandhian movement. The Gandhian movement politicised these people and brought them onto the streets and talked about politics among others within the villages. There are great novels from the period (Prem Chand is an example, for those who read Hindi), there are discussions within villages among peasants and local leaders about politics, the people are politicised. That is the real achievement of the Indian national movement. And what that means is that it was never exactly the same, and couldn’t be the same. Now you have elections and democracy, now people know that they have some kind of voice, and some sort of power. And even if this exercise of voice and power is deeply curtailed by a very hierarchical, very unequal system where some have enormous money and power and some don’t, it does still exist in some form. And you see that happen again and again, like the anti-Emergency movement, that show that you can mobilise against the state through these calls, and these movements happen among the poorer spots in India, around Bihar and Uttar Pradesh. There are these different examples of what democracy in India achieved, which I think is more than almost anywhere else in the post-colonial world. And that is not just because the constitution is stable. It’s because there is a genuine democratic competition and contestation. It’s not my argument to say that one or the other side is good. One side says that nothing happened and the state is as bad as before independence, while the other says that we got full freedom and everything is great. The real answers are always a bit more complicated. The complicated answer would be that there was not enough change, that people had hoped for and were promised more change especially with socio-economic categories and power. But democracy works in India and is still a really extraordinary thing. I think it’s an extraordinary achievement, and the Congress and anti-colonial movement, with a real popular movement and real popular party.

Uday: While that would be all for the book, one more question which I did have in mind for you was, if you could go back to the constitutional assembly debates surrounding this time, which debate and which aspect would you wish was more touched upon and which should have received more emphasis from the people themselves?

Professor Dasgupta: That’s a very good question, and I’ll give you two answers, one in terms of the process and one in terms of actual substance. So in terms of process, I wish it drew more from popular politics. The anti-colonial movement was a very popular movement, and the Congress was a very popular party. During the assembly, when they were meeting in those 3-4 years, there was a lot of popular political activities going on outside. You had these huge strikes, you had peasant rebellions and student movements, and the assembly tries to separate themselves from it rather than drawing from it. You can draw from it in different ways, be it institutionally, or in terms of a referendum, or actual public discussions or public forums, none of which they do. Had they done that, it would have been more of a popular constitutional form, rather than the version we get. And that process would have changed many actual substantive things in the constitution. And for substance, there are two things I wish were different. One is the thing about repression, I think the constitution preserves and legitimises some colonial forms of state repression, which I wish wasn’t the case. From those very days all the way up to today the state has this tremendous discretionary power to repress citizens, like to arrest them. Those I wish were better, and those come from a colonial practice. Preventative detention and pre-trial detention are both colonial things, and I wish there were better remedies against that, because that’s part of being a democracy: allowing for political dissent and political movements, and challenging the state. I wish that one thing the constitution makers did not include. Another big thing for me is in terms of the property question, I think there were ways in which land reforms could have been made more successful in the constitution by giving it more. It’s not a simple thing about just one provision or not. I think Ambedkar and had a couple of very good suggestions about changing the land structure, which were not taken seriously by the congress, and I think that would have changed a lot. I think the large landlord class plays a very negative role in India’s political life afterwards, and I think there was a chance then to substantially deal with that problem and have a more equitable land system, which I think would have had a very different outcome afterwards.

Uday: So that would be all, Sandipto. Thank you so much for being here.

Professor Dasgupta: Thank you for having me.

Uday: We are Axes of Differences, we are a separate section of LSPR and we specifically deal with questions of caste-class and how the constitution has developed. Thank you so much for coming and talking with us.