For some years, the endurance of constitutional democracy in India has been a puzzle for political scientists and public law scholars. The creation of self-government on Indian soil challenged Western political theory and history, and its survival in atypical and unusual circumstances has mystified students of comparative politics. 1 If the conventional wisdom is believed, self-rule in a country with major levels of poverty, illiteracy, and diversity should neither have been instituted nor sustained. 2 India has managed to hold elections with remarkable regularity, and it boasts of a constitutional culture where conflict has, for the most part, been articulated through legal means. 3 The troubling reality of contemporary Indian political life—where the principles of constitutional democracy appear to be under serious threat—does not take away from the achievement of modern India or from the puzzle that the nation’s history invites. Regardless of whether India will remain a constitutional democracy, it is somewhat astonishing that it was ever one to begin with.
Even though the perplexity of the Indian experience has been the subject of scholarly interest and popular fascination, the origins of this experience remain relatively understudied. Two new and important books—Ornit Shani’s How India Became Democratic: Citizenship and the Making of the Universal Franchise and Rohit De’s A People’s Constitution: The Everyday Life of Law in the Indian Republic—help to fill this void. They each further our understanding of how India succeeded in becoming a constitutional democracy, and they each shed light on the forces and factors that shaped one of the most crucial political transitions in the postcolonial world. Together, their contribution is significant: above all, they allow us to grasp how institutions and norms and practices come into being. At a time of considerable global anxiety around the working of constitutional democracy, such a contribution could hardly be more urgent. 4
Ornit Shani’s How India Became Democratic addresses a matter central to any democratic enterprise: the creation of an electoral roll. But the electoral roll that interests her is no ordinary one. Created amid civil war and mass migration, it brought into being the world’s largest democracy, a democracy where universal adult suffrage was granted at once rather than gradually. The electoral roll, Shani observes, would include 173 million people. And, of these several million, around 85% had no experience of voting. The book’s focus is on “the practical—rather than ideological—steps through which the nation and its democracy was built” (at 5). Shani is concerned with the institutional and bureaucratic story as it unfolded. Her principal source is the archive of the Election Commission of India, whose documents How India Became Democratic parses with clinical care.
The first roll had been drafted even before India’s Constitution came into effect in 1950. Thus, the foundation for making voters out of Indians had been laid prior to the nation becoming a republic; the all-important question of who was an Indian was negotiated before the Constitution’s vision of citizenship was formalized. 5 To prepare an electoral roll required determining who was eligible to be a citizen, and Shani captures how this enterprise involved intense interactions between the bureaucrats who undertook the process and individuals who sought to be registered as participants in the new nation. As she points out, “people and social groups not only engaged with the constitution, but also entered into dialogues with the [Constituent Assembly Secretariat] and their local government about draft citizenship provisions” (at 164).
One of the many strengths of How India Became Democratic is its insight into the intricate and prosaic world of state-building. When constitutions come into being, their makers are required not merely to explore the forms and limits of state power, but also to negotiate the brutal reality of state formation. Before a state can be controlled, it must be created. 6 The preparation of the electoral roll provides a terrific window into the creation of state power and the emergence of state capacity. We learn about the singular role performed by the Constituent Assembly Secretariat, and about the different tasks undertaken by administrative offices and officials at multiple tiers of government. The challenges at hand included determining whether the electoral roll should be combined with the census; what documentation should count as proof of age and other details; whether the responsibility of registration should fall on the voter or state; the precise process by which registration should occur; and so forth.
Through an exploration of letters, circulars, newspaper reports, magazine editorials, and the like, we learn about the different queries and complaints, about procedural infirmities and state monitoring, and about how identification was undertaken. Some matters proved especially interesting, such as the registration of women, as many were reluctant to be registered under their own specific names. And some issues were particularly tricky, like the registration of refugees—even more so in partitioned regions such as Bengal and Punjab. This enterprise engendered much debate over the meaning and model of citizenship, and it brought into sharp focus the confusion between being registered as a voter and being registered for citizenship. “It was these contestations,” Shani points out, “over membership in the nation through the pursuit of a ‘place on the roll’ that gave a practical basis to the conceptions and principles of democratic citizenship that were debated at the time in the process of constitution making from above” (at 53).
These contestations involved state actors at various levels as well as different non-state actors. For instance, the question of paying for the preparation of the electoral roll and the costs of the entire process formed part of an intense and important set of exchanges between the Constituent Assembly Secretariat and the provincial and state governments. Through the story of the process by which persons sought to become voters, we are exposed to the ways in which central, state, and provincial governments engaged and interacted with one another and with civic bodies and associations. Throughout, this is a story of how actors from very different vantage points came together to be part of a joint project: how they individually and collectively negotiated the dramatic conceptual transition from the colonial frame of mind, which had seen universal suffrage to be both undesirable and infeasible in India, to the postcolonial one which put its faith in self-government.
The preparation of the electoral roll would inform and shape certain principles of constitutional government. On the abovementioned issue of costs, for example, the resolution of the disagreement between the Constituent Assembly Secretariat and the state and provincial governments involved “in effect, a means of disciplining the federation, and of legitimating the authority of the center” (at 143). More fundamentally, the process would have a direct impact on India’s final constitutional text. The Secretariat’s experience with the electoral roll—such as the local failures that sometimes occurred in following central instructions—influenced the eventual constitutional framework for the holding of elections. In particular, the Secretariat highlighted “the importance of setting up an impartial and independent body to direct and control the elections” (at 189). 7 The preparation of the first electoral roll thereby shaped the future of Indian democracy in direct ways.
The transition to universal suffrage was cemented in the public sphere and the popular imagination through widespread communication. Shani underlines, in this regard, the clear and informative press notes of the Constituent Assembly Secretariat and the commitment and interest displayed by the media. The engagement with the preparation of the electoral roll—on both substantive and procedural matters—did not merely further knowledge and understanding. In marking a shift from the modes by which the colonial state had enumerated people, such a conversation was itself crucial to the instantiation of democracy. Simply put, the publicity and dialogue around the electoral roll itself underlined the meaning of the right to vote. The descriptive and deliberative enterprises were, that is, themselves constitutive. Shani is weaker at capturing the conceptual moves at work here than one might have hoped, but this is perhaps an inevitable consequence of her emphasis on the nuts and bolts of the process rather than on the ideas that drove it.
Many of these themes—of engagement as cementing norms, of constitutionalism from below—lie at the heart of Rohit De’s A People’s Constitution. De considers how “large numbers of ordinary Indians, often from minorities or subaltern groups” (at 1–2), negotiated the Indian Constitution soon after it came into force. The Constitution, De shows us, “did not descend upon the people; it was produced and reproduced in everyday encounters” (at 3). The text was doubtless a product of an elite group of men and women, but we learn how it was embraced by diverse Indians who inhabited many different worlds. These citizens not only accepted the Constitution, but more significantly saw it as the means for asserting claims against the state. They filed writ petitions and sought to enforce constitutional remedies, and they saw themselves as rights-bearers.
The book is organized around different case studies whose themes range across ordinary and basic matters. Throughout, De is sensitive to the nature of the facts, the specific legal rules and regulations that applied, and to the character of the litigants, their professional setting, community environment, and social milieu. Indeed, A People’s Constitution superbly integrates legal materials with social reality. The history of a legal case is provided from start to finish, and at each stage we are shown the context and motivations that shape how laws are made, understood, and applied. We grasp how rules shaped behavior, and we thereby come to understand why constitutional challenges took the specific shape that they did. Legal doctrine was not a straightforward outcome of judicial trends and techniques. It was a function of how citizens, often those at the margins, came to think about the constitutional text and their place as participants in a grand constitutional project.
Given its emphasis on constitutional conversations, on how claims before courts were articulated and framed, on how matters travelled to courts in the first place, A People’s Constitution takes our attention away from the judicial verdicts that were delivered. All too often, De correctly recognizes, we singularly focus on the outcome delivered by a judgment, thereby missing the arguments and assertations that arise before the court—arguments and assertations that characterized the “citizen litigant” (at 26). This shift in orientation is certainty a worthy one; it is crucial to coming to a sense of how constitutional consciousness percolates. But though verdicts themselves are not the only variable in the creation of a constitutional culture, A People’s Constitution seems to somewhat sideline the inner logic of the judgments that were delivered. This is unfortunate for it limits the overall account. Any claim before a court, after all, internalizes some understanding of the logic by which courts determine matters, and that internalization is central to law’s legitimacy.
The four chapters in A People’s Constitution explore constitutional challenges involving prohibition laws, controls on commodities, the banning of cow slaughter, and prostitution as a profession. In each instance, De does an excellent job of providing the social and historical context of the litigation. In the case of prohibition, to offer but one simple example, De reminds us of the relationship between the Parsi community and the liquor trade. We are exposed to the experience of the litigants, the logic that drove the measures in question, the salience that rules carried, and—importantly—the transition in the legal environment in the process of democracy and decolonization. Perhaps the most compelling feature of these chapters, whether one learns about a butcher or a prostitute, is that they reveal how citizens used the constitutional text to claim their rights as free and equal beings. In accepting and relying upon the authority of the new legal system, they gave authority to that system.
As a window into litigation—the actors, the arguments, the context, the consequence—A People’s Constitution is superbly crafted. It is less certain, however, whether the book succeeds in explaining the spread and entrenchment of constitutionalism during the early years of the Indian republic. The case studies illustrate a great deal; there is certainly something rich and important in what they offer. But to what extent are they representative of legal disputes and citizen engagement at the time? Do they capture the history of Indian constitutionalism’s first period or do they instead provide an account that is engaging but ultimately limited to a select few cases? It is hard to fully know the answers to such questions, to fully appreciate the historical lessons that should be drawn from the material at hand. 8 In contrast, the account in How India Became Democratic is largely representative of India’s first experience with voting, though of course Shani does carefully observe important exclusions to the right to vote, both unintended and specified.
Despite this quibble, A People’s Constitution clearly impresses upon us how several Indians learned the new language of constitutionalism, just as How India Became Democratic underscores how they oriented themselves to democratic ways of being. There are some further similarities that bear mentioning. As I have observed, a common and vital theme in both books is the relationship between political elites and, for want of a better phrase, the common man. In How India Became Democratic, we are exposed to how bureaucrats engaged with a wide range of ordinary actors whose input and involvement was central to the creation and realization of the overall political vision. In A People’s Constitution, we notice the role that civil society played in building constitutionalism, how judges and courts play their parts and perform their responsibilities within the context of citizen engagement. The books reveal how constitutions are both elite pacts and social contracts, how constitution-making and constitutional endurance requires leadership as well as local support.
A related noteworthy theme is the role of struggle and conflict in the emergence of democratic constitutionalism. In both books, what we notice as invaluable is not merely the interaction between political elites and local actors but, more fundamentally, the debates between them. It was not the conversation but rather the contest over citizenship and rights—and the broader themes that the concepts implicate—that led to a constitutional culture. In that sense, the books serve to rehabilitate the role of disagreement in cementing the political worlds that we inhabit. 9 They remind us that disagreement may not only be unavoidable in politics and in law, but rather that it is central to the evolution of both domains. The disagreement, moreover, captured the background consensus that elections provided a peaceful means by which to transfer power, and law provided a peaceful means by which to resolve disputes. To disagree, to make claims upon the state, was a mark of taking the enterprise seriously.
Quite clearly, then, both How India Became Democratic and A People’s Constitution teach us a great deal about the birth of modern India and about the creation of constitutionalism. For far too long, Indian social scientists have focused—albeit with remarkable skill and energy—on either the struggle for freedom from British rule or the vagaries of India’s postcolonial political life. One casualty of this stress has been a deeper appreciation of the moment of decolonization, of the period of transition from empire to democracy. In addition to the mechanics behind state-building and the ways in which citizens internalized the new constitutional order, there is a further feature that is crucial to understanding this period of transition: the ideas that shaped the choice for democracy in a country that lacked the social, economic, and historical prerequisites upon which self-government was widely thought to be predicated. Simply put, how did India’s founders address the colonial arguments against Indian self-rule? How did they make democracy possible?
I have tried to provide an answer to this vital question in India’s Founding Moment, a book that attempts to shed light on the specificity and significance of the postcolonial constitutional moment. 10 India’s constitution-making endeavor exemplified the effort to rethink democratic theory: its founders suggested that it was politics itself—rather than submission to an alien force—that would result in an enlightened politics. A democratic citizenry would emerge by means of a democratic politics. The content of the Constitution reveals the institutional structure that could effectuate the shift from a colonial subject to a self-governing individual: it presents a vision of the architecture of democracy. Three mutually reinforcing elements would constitute a democratic citizen: a new language of rules; an overarching state; and the individualization of identity. Together, these elements would allow Indians to engage with one another on new terms; as free and equal beings present within a new world of knowledge and understanding.
Central to this vision was the belief that the Indian people could be created and recreated. For India’s founders, the conclusions that the imperial mind had drawn about the colonial people were not permanent historical facts; they were a contingent outcome of the politics to which the people had been subject. A new politics could, India’s founders felt, create a new people. Given present political events, both in India and elsewhere, we would do well to recall not only the institutionalization of constitutional democracy in India, but—more fundamentally—the ideological impulse behind the faith in democracy in the first place. India’s birth reminds us that our political world can be made and remade in dramatic and profound ways. It captures the profound constructability of the institutional environments that we inhabit—and, in our time just as in previous ones, that fact leaves us with both hope and fear.
On India’s democratic survival, see Arend Lijphart, The Puzzle of Indian Democracy: A Consociational Interpretation, 90 Am. Pol. Sci. Rev. 258 (1996); Ashutosh Varshney, Why India Survives, 9 J. Democracy 36 (1998); Devesh Kapur, Explaining Democratic Durability and Economic Performance, in Public Institutions in India 28 (Devesh Kapur and Pratap Bhanu Mehta eds., 2005).
See generally Uday Singh Mehta, Liberalism and Empire: A Study of Nineteenth-Century British Liberal Political Thought (1999); Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and Grance (2006).