This talk was delivered as part of the 5th annual History for Peace conference, The Idea of the Indian Constitution in July 2019.

The idea of the constitution as a ‘founding moment’ has served certain purposes: it helps to foist a formal-juridical frame for the interpretation of the constitutional text without looking at the complex debate that informs the Constituent Assembly Debates (CAD) and precedes it. It also tends to sustain expressions such as post-nationalism and post-colonialism as denoting epochal moments of rupture from the past, with an additional caveat that post-colonial constitutionalism could not be a mimetic reproduction of transatlantic constitutionalism. Nationalism as a break from the past has also helped people to argue that the point of departure of India as a nation was also a Hobbesian moment of envisaging the state. This presentation subjects these positions to a critique by distinguishing between constitutionalism and nationalism on one hand, and mainstream/liberal constitutionalism and ‘subaltern’/democratic constitutionalism on the other. Its focus, however, remains on the latter, i.e. ‘subaltern’/democratic constitutionalism. Even within this focus, we will mainly consider those stances that represent concerns of Dalits and Adivasis. This interrogation is pursued by taking recourse to certain key representations and reports, that form the pre-texts of constitutional reasoning in India. It is important to mention that these representations and reports are interlocutory in nature and actively engage with competing stances on the issues in question. Ambedkar’s interventions at the Round Table Conferences (1930–32) and the Gopinath Bordoloi Committee report (1948) are my primary sources for this investigation.

Constitutionalism and nationalism are deeply contested terms: I use the term constitutionalism to denote a mode of organizing and directing public power, resting on norms and rules that enjoy broad popular consent.  These norms and rules govern the relation between public power and those who are subject to it, as well as among the subjects themselves. These norms and rules may lend themselves to crafting characteristic institutions and processes to subserve their purpose. By nationalism, I mean a bond of togetherness that imbues a people who seek their independent political existence, marking them off from others of the kind. How such a bond is forged is not a matter of our concern here.

For a number of reasons, India’s nationalist and democratic imagination assumed a pronounced constitutional mode. It is important to recall that this was not the case in many societies that set up their independent political regimes based on the claim of being separate nationalities. It was not bequeathed to India by the colonial regime, as sometimes argued,[i] but made its way through active opposition and contestation with the way colonial power sought to elicit popular consent. The open-ended nature of India’s national movement and its primarily non-violent character offered an opportunity for advancing contending and competing conceptions of public life. It also enabled significant mass participation in the movement. Such a setting became the enabling ground for shaping a constitutional way in India. In the process, India’s struggle against colonialism not merely sought national independence, but churning an inner life of its own, also resulted in incubating constitutional democracy. It was a distinctive mode of constitutional democracy which was irreducible to its counterparts elsewhere, although there have always been agonizing moments at the critical points recrafting its core elements.

While constitutionalism and nationalism are often enmeshed, in texts and pursuits, they have been competing and often conflicting persuasions. This was particularly the case in India: while distinct social groups were making a claim on public power and arguing that the legitimacy of public power in their eyes was dependent on responses to such a claim, nationalism highlighted the shared bonds and downplayed differences. Constitutionalism was concerned with rights and obligations of members of a political community, while nationalism laid stress on their unity. While nationalism saw constitutionalism as a break in its pursuit, the latter saw the former as riding roughshod on legitimate and differential claims on power. The constitutional moment expressed itself not in a contrarian way as nationalism did, but in an interlocutory way.

The genealogy of constitutionalism can be traced to the turn of the Indian nationalist imagination against the colonial ways of legitimizing itself. A critical phase of constitutionalism in India was set in motion when a group of Muslim leaders began to make the demand for separate representation while acknowledging the ground they shared in common with the rest of India.[ii] It was grappling to find its mass-foothold from the eve of the Montague-Chelmsford Reforms and its precedent developments such as the Lucknow Pact (1916). We find its decisive stamp in the India Act, 1935.

The Round Table Conferences, Ambedkar and Democratic Constitutionalism

The Round Table Conferences (RTC) (1930-32), with the intervening committee reports[iii], Awards[iv] and agreements[v] were a momentous prelude not merely to the India Act, 1935, but to the formation of a distinct constitutional discourse as far as India was concerned. The Nehru Report (1928), Muhammad Ali Jinnah’s ‘Fourteen Points’[vi], and the various demands that the different party forums including the Indian National Congress raised, were integral to this discourse. In comparison, an earlier attempt in this direction that led to the Montague-Chelmsford reforms of 1919 fades into insignificance. The constitutional discourse that led up to the 1935 Act embodied competing stances on the future of constitutionalism in India.[vii]  Debates at the RTC, which were neither wholly reflected in the India Act, 1935 nor seriously followed on till India stepped into the constitution-making process in late 1946, provide a backdrop to understand how it anticipated some of the most important insights of the future Indian constitution. It is important to point out that several delegates at the RTC, from Madan Mohan Malviya to Ambedkar, considered their inputs as marking the roadmap for a constitutional India. This discursive setting provided an extended platform to Ambedkar, to defend his vision of constitutionalism as the representative of the Untouchables, before other competing viewpoints. Many of the substantive positions on constitutionalism that Ambedkar defended later were either foisted on this platform or were elaborations of the same.[viii]

i) Swaraj as the Foundation of Constitutionalism

While the term ‘swaraj’ had acquired multiple connotations and was the battle-cry in Gandhi’s usage to rally India against colonial rule, Ambedkar employed it as a template both to critique colonial and mainstream constitutional designs on one hand, and to denote the nature of the public power that India as a whole, including the Untouchables sought. At the first RTC he argued, ‘It is only in a swaraj constitution that we stand any chance of getting the political power into our hands, without which we cannot bring salvation to our people’ (BAWS, Vol. 2, p. 505). In his view, the tinkering in the outlay of the colonial regime that the British wanted to effect could not serve the purpose. There were two reasons that acted as the roadblocks for even the most advanced colonial thinking in this direction: first, ‘the character, motives and interests’ of the regime and secondly, ‘the mortal fear of resistance’ that they would suspect from the dominant sections of their colonial subjects. The British invoked the virtue of ‘prudence’ as an alibi in justification of their interests and fear of social resistance.  This blighted rationale had also made the British quite oblivious of the responsibility of changing the conditions in which the untouchables lived. Under the colonial rule, he argued, the lot of the untouchables had worsened. The virtue of prudence truly called for something else in India—a government ‘in which men in power, knowing where obedience will end and resistance will begin, will not be afraid to amend the social and economic code of life which the dictates of justice and expediency so urgently call for’ (BAWS, Vol. 2, p. 505). The British had failed to buckle up such a disposition. The only way challenges of this kind could be met is by replacing the bureaucratic form of government in India, the colonial government, ‘by a government which will be a government of the people, by the people and for the people’. (BAWS, Vol. 2, p. 504). It cannot be merely ‘a change of masters’.  He felt that the time to weave a clever web of sophistry around ‘premises’ already chosen was over. The proposed constitution must be acceptable to the ‘majority of the people’, and ‘the consent of the people and not the accident of logic’ should be its touchstone(BAWS, Vol. 2, 509).Arguing for constitutional democracy for India, Ambedkar reiterated the case made before the Simon Commission two years earlier, for a government wholly resting on the will of the people elicited through periodic universal adult franchise (BAWS, Vol. 2, p. 338).

He also argued that the Indian National Congress too cannot be the vehicle to bring about this transformation: it was primarily a captive in the hands of caste Hindus. Caste Hindus had shown little inclination in transforming their social institutions and extending equal considerations to others qua human. The indigenous capital too had rallied behind it in support. With ‘transition of power’ the hands of those who wielded ‘tremendous economic, social and religious sway’ over the lives of the ‘Depressed Classes’ will be enormously reinforced. In his estimate, the fear of recrudescing of old dominance through new resources was widespread throughout India. Further, the Congress had solely focused on whether India was going to be part of the British empire or not, and had not seriously reflected on the institutional frame for India (BAWS, Vol. 2, p. 612). While the appeal of nationalism might be irresistible, it was important for everyone to know the terms of the associated life they wished to belong to. Swaraj for everyone should be the foundation for the same.[ix]

ii) The Untouchables as a Minority[x]

Earlier in his submission before the Southborough Committee, Ambedkar had argued that the notion of a political minority within the ambit of liberal thought is inappropriate in the context of India. There were different kinds of minorities. In his book, Pakistan or Partition of India, he would later spell out their taxonomy in greater detail: while there are minorities which are communities that seek autonomy to pursue a way of life they cherish without necessarily entertaining a distinct conception of ultimate good, there are others who are committed to an ultimate good, as he thought Muslims in India were (BAWS 8: 325-328). In his submission before the Southborough Committee he had also argued that a minority has to be seen in relation to the extent to which it is able to regulate ‘the terms of associated life’ (BAWS, 1, p.265)[xi] and mere numbers would not be the test to demarcate it. But at the RTC his focus remained on minorities who were socially and economically marginal, such as the Untouchables, who needed special considerations, without which they would not be able to pursue their aims in life. He felt that while ‘all minorities are in the same boat, they are not at all in the same class in the same boat; some are travelling in “A” class, some in “B” class and some in “C” and so on’ (BAWS, Vol. 2, p. 529).

What is it that distinguishes depressed classes as a minority from other minorities? Depressed classes are not entitled to ‘civil rights’ (BAWS, Vol. 2, p. 530), a deprivation that Ambedkar regarded ‘as effective as a law’.  They are barred from ‘any physical contact’ with the rest, a condition worse than that of the slaves. They are ‘subject to social persecution’ (BAWS, Vol. 2, p. 531) and constantly face fear of multiple forms of violence. Their very humanity is denied to them. The list is long, and Ambedkar returns to the theme enumerating layers and layers of modes of oppression that the Untouchables are subject to.[xii] Being a small minority, whatever representation they might secure may not be effective due to the ‘apathetic attitude of the orthodox classes’.

But there are also concerns common across minorities: in India, the Untouchables along with other minorities feared that the majority rule would be by orthodox Hindus, with ‘beliefs and prejudices contravening the dictates of justice, equality and good conscience’ and were likely to be discriminated against.  All minorities were susceptible to such discrimination.

At the RTC Ambedkar advanced a few suggestions to ensure a level-playing field for minorities, although their import might vary from minority to minority. There should be ‘representation in the legislature and executive as well as in public services for the minorities, both at the central and provincial levels’. Representation should be based on election rather than nomination. At the same time, there should be ‘certain limitation on the legislative power that will prevent majorities from abusing their legislative power[. . .]which would create discrimination between one citizen and another’. As far as the Untouchables were concerned, ‘untouchability’ should be declared as illegal for all public purposes and its practice in all forms should be forbidden. Given the unequal condition of minorities, the principle of weightage (should) be considered on grounds of weakness of numbers, low social standing, backward educational standing or weak economic strength. Further, while constitution might confer rights, they would be mere ‘paper rights’, ‘unless the constitution provides that that if anyone infringes my rights he is liable to certain penalties’ (BAWS, Vol. 2, p. 538).

At the RTC, Ambedkar’s principal focus was to ensure that the Untouchables were recognized as a distinctive element of India’s body-politic that called for constitutional guarantees. Later he argued that one of the central principles that Indian constitutionalism had avowed over the years, was that when a social element had been recognized as an autonomous entity publicly, it was granted a constitutional status. He used this argument in defence of Schedule V and Schedule VI of the Indian constitution.

(iii) Active Citizenship

It is important to point out that Ambedkar sought a common citizenship for the whole of India at the RTC, and argued that ‘there can be no real federation unless there is common citizenship’ (BAWS, Vol. 2, p. 611). But apart from arguing for a common citizenship, the idea of ‘energetic action’, and citizen agency imbued with this spirit, is quite central to Ambedkar’s thinking and he invoked it throughout his writings. It is the social structures in India and colonial regime that act as a damp squib in nurturing such agency. At the RTC he argued that the depressed classes have no friend, and have to fall back upon themselves. Nevertheless, they were prepared to confront their despicable situation if they were ‘installed, in adequate proportion, as the political sovereign of the country’ (BAWS Vol. 2, p. 506). Self-help was the best means to remove the grievances of the depressed classes, and for this purpose they needed political power.

This notion of active citizenship became the primary attribute of republicanism in his later interventions. This can be seen in the distinction between democracy and republicanism that he made in the Constituent Assembly Debates (CAD).[xiii] Part of his critique of Gandhi’s moral call to upper castes to make amends for the practice of untouchability rested on this: Gandhi had argued that Hinduism does not uphold Untouchability. Upper Castes’ practices in this regard are morally reprehensible and they have to make the necessary amends for the same. The ‘sin of untouchability’ is attributed to a section of Hindus for no fault of theirs. Ambedkar thought that such an argument, even though it might be acceptable to the upper castes, is likely to lull further the capacity of the Untouchables to fight for their self-emancipation. Their humanity cannot be at the mercy of the upper castes. The conundrum in which the lives of the Untouchables were caught could be resolved only by eliciting an extraordinary collective self-agency to combat it.

iv) Fundamental Rights

In the Subcommittee of the Minorities Ambedkar expressed his full support for the provisions of fundamental rights, including safeguarding the cultural and religious rights of the various communities without discrimination of race, caste, creed or sex. He argued that fundamental rights were not merely civic rights but also encompass a range of substantial claims. But he also insisted on sanctions for the non-enforcement of fundamental rights, including the right of redress when they were violated. Such a demand, if it was accepted, would have made not merely social agents but also state functionaries accountable for their actions that contravened fundamental rights. At the RTC this demand was turned down on the plea that sanctions for non-enforcement of rights and redressal mechanisms should be part of legislative enactments and not a constitutional provision.  Ambedkar clearly had untouchability in view when he made the demand. Interestingly, he brought up this issue again in his response to Nehru’s Objective Resolution in the Constituent Assembly.[xiv]

v) Constitutionalism and Representation

At the RTC, Ambedkar reiterated the stand that he had taken in his statement to the Simon Commission, that there cannot be any fairer system of representation and responsible government than ‘adult franchise’ (BAWS, Vol.2,p. 561). Franchise is ‘the right to regulate the terms of what one might call associated life in society’ (BAWS, Vol. 2, p. 559). It ‘should be regarded as the inherent right of every individual in the state, who is capable of understanding it.’ (BAWS, Vol. 2, p.559). He also criticized representatives at the RTC who had earlier supported the stand of the Nehru Report that called for universal franchise, but had come to accept a narrow franchise. He thought the offer of the British Government in this regard was so limited that it ‘must necessarily make future government of India a government of the masses by the classes.’ (BAWS, Vol. 2, p. 597)[xv].

In his representation before the Southborough Committee earlier, he had argued that ‘representation of opinions by itself is not sufficient to constitute popular government . . . it requires personal representation as well.’ (BAWs, Vol. 1, p.  247). This was a stance that he reiterated at the RTC as well. Virtual representation, i.e., representation of interests, is not adequate in a context where the idea of common interests had little salience.  Common interests can be forged only through a sustained critical engagement and this demanded that adequate representatives hail from the constituencies concerned.[xvi] Further, those who hail from a large group will invariably be in an advantageous position at the hustings compared to someone hailing from a small group.  Such advantage can only be countered by shoring up the representative presence of minorities.

How to institutionalise such a mode of representation? His position marked a major shift in this regard. At the RTC he took an initial stance that under limited adult franchise, separate electorate for the Untouchables (and even minorities) is appropriate; while under universal adult franchise and equal citizenship, joint electorate with reservation for the Untouchables (including minorities) is better.  He says,

‘If you give us adult universal suffrage the Depressed classes, barring a short transitional period which they want for their organization, will be prepared to accept joint electorates and reserved seats; but if you do not give us adult suffrage, then we must claim representation through separate electorates.’ (BAWS 2, p. 533)

However, quite a few reasons made Ambedkar shift his stance in favour of separate electorate for the untouchables, including pressure of organized Dalit opinion at this juncture, the position of other minorities, and lack of prospects of advancing the cause of universal adult franchise at the RTC. Gandhi opposed separate electorate for the Untouchables, and when the Communal Award of 1932 accepted the demand of separate electorate for the Untouchables, went on a fast unto death. He gave up the fast when Ambedkar as the representative of the Untouchables signed the Poona Pact, agreeing for joint electorate with an enhanced number of reserved seats for the untouchables.

But even after the Poona Pact, Ambedkar continued to argue that the system of joint electorate with reservation is not conducive to uphold the interests of Untouchables.[xvii] Where there is a dominant ascriptive majority evenly spread across, such as he thought to be the case in India, he argued separate representation is better, as it can alone ensure that representatives would remain responsive to the interests of the minority concerned.

Should there be communal representation in the cabinet? Ambedkar’s opinion in this regard underwent major changes overtime. At the RTC he felt that it need not be so, ‘if the minorities could get constitutional and statutory guarantees laid down in the constitutional Act.’ (BAWS 2, p. 514) But he reversed his position in this regard in ‘States and Minorities’. [xviii] It is important to recognize that such reversals, far from being opportunistic, revolved around the principled stance of securing a fair share for the community concerned in the associated life of the society.

vi) Institutional Outlay

With regard to the institutional outlay, Ambedkar expressed his preference for a parliamentary system of government (a preference that he would reiterate subsequently): it prioritises responsiveness to stability, sensitivity to diversity, and is positively disposed to minority representation. He called for elections on the basis of adult franchise and not nomination in the Princely States, to the chagrin of the representatives of the princes and the colonial office[xix]. He argued that there was a feeble case for a second chamber in the federal legislature, but if it has to be there, he felt, ‘It should be constituted by the method of indirect election in which provincial legislative councils will form the constituencies’.

While he favoured a unitary form of government he was prepared to accept a federal one where local autonomy is consistent with central unity.  He felt that the all India concerns should not be set aside in the name of provincial autonomy. ‘Such powers as remain undefined must be left with the central government.’ (BAWS, Vol. 2, p. 513)

While ‘indianisation’ of services was welcome, it should not be packaging it with the interests of the dominant classes. Ambedkar insisted on the necessity of public service commission to ensure fair representation to the various communities, particularly in the police and military (BAWS, Vol. 2, p. 610). He also felt that the provincial government should be able to function independently without the interference of the central government ‘in those domains which have been transferred to its control’ (BAWS, Vol. 2, p. 522). This is a stand that he reiterated when the central government showed enthusiasm in removing elected state governments under Article 356 of the Indian constitution.

Bordoloi Committee Report, Adivasi Demands and Constitutionalism

There was no Adivasi representation at the Round Table Conferences. The colonial regime thought that it knew what is good for the Adivasis! The India Act, 1935 demarcated three types of habitats of Adivasis in India: the excluded areas, the partially excluded areas, and the non-excluded areas. The excluded areas located in the frontier regions were primarily inhabited by Adivasis and people regarded as ‘backward’, and were wholly excluded from the jurisdiction of provincial assemblies under the Act.[xx] The partially excluded areas were those having a ‘preponderance of aborigines’ or ‘very backward people’ that were contiguous and of sufficient size, and recognizable boundaries to make possible the application of special legislation to them. For general policy measures and administrative arrangements, they came under the province in which they were located.[xxi] It is important to point out that the majority of the Adivasis lived in non-excluded areas. In many Princely States there were areas primarily inhabited by Adivasis, and there was no special consideration meted out to them qua Adivasis.

The Constituent Assembly constituted two bodies to closely investigate the conditions of Adivasis in India. The first was North-East Frontier (Assam) Tribal and Excluded Areas Sub-Committee, chaired by G.N.Bordoloi. The other members of this Committee were J.J.M. Nichols-Roy, Rup Nath Brahma and A. V. Thakkar. The second, the Excluded and Partially Excluded (P. E.) Areas (other than Assam) Subcommittee was chaired by A.V. Thakkar and had Jaipal Singh, Devendra Nath Samanta, Phul Bhanu Shah, Jagjivan Ram, Profulla Chandra Ghosh and Raj Krushna Bose as members. The Bordoloi Committee coopted two members from the tribes of each one of the districts it visited, who signed the minutes of the meeting as well.[xxii] The Thakkar Committee coopted members on area basis.[xxiii]

A close scrutiny of the reports of these two sub-committees suggests that both of them had much in common with regard to the stress they laid on respecting Adivasi cultural autonomy and ways of life, the need to create appropriate institutions for the purpose, and making room for their greater participation in the political institutions of India’s democracy. However, there was a major difference: the Bordoloi Committee was much more deferential to the autonomy demands of Adivasis[xxiv], while the Thakkar Committee laid stress on enabling Adivasi access to wider national life. The latter also stressed on reservation in representation under the joint electorate, and ‘due proportion’ of recruitment in Government services (Constituent Assembly Debates (CAD), Vol. VII, p. 183)[xxv]. Given the sensitivity of the Bordoloi Committee to engage with the voice of the Adivasis themselves, it may be worth looking at the constitutional design for Adivasis that it eventually came to recommend.[xxvi] A slice of the conversation between the Committee, Q, and a local delegation in Lushai Hills, A, brings it out:

‘Q. I think you know certain facts. For example, you know the Britishers are leaving things to you and us to shape our future.

A. In order to shape our future, is it possible for us to choose our own constitution?

The Hon’ble Mr. Bardoloi. Yes, if you think and come to reasonable conclusions (italics mine), I think it will be considered by the Constituent Assembly and met as far as it is possible. ·

1. We have heard many times that India is trying to get Home Rule or Dominion Status or something like that. If we can get a sort of Home Rule in Independent India…………

2. What is it you mean by “Home Rule”? A.I mean by “Home Rule” that the internal affairs of the country should be in the hands of the Mizo people.

Q. Could you specify some subjects? A. Subjects to be left in the hands of the Indian Government may be:-

Foreign Affairs,

Defence,

Communications.’[xxvii]

It is interesting to note some of the issues highlighted by local Adivasi spokespersons: several of them made larger territorial claims affecting other Adivasi settlements. For instance, the Dimasa-Kacharis in their submission to the Bordoloi Committee stated,

‘Before the annexation of our Kingdom to the British Empire, we were never under any power and all the Dimasa-Kacharis were under one kingdom. But the divide and rule policy of the British Government put us under different administrative units. Now that the British Government is going to cease by June 1948, our natural desire is that all the Dimasa-Kacharis be again united and put under one Sub-division in the New National Government of India.’[xxviii]

Adivasi communities stressed on outreach to other Adivasi communities who shared similar ways of life and beliefs. For instance, while the relation between the Kukis and Nagas remained hostile, Naga leadership tried to argue that the ways of life of the Kukis were very close to them. Demarcation pf certain identities remained inappropriate in the eyes of the tribes themselves. For instance, many Lushais felt that Lushai identity was far too narrow to describe them. They wanted to describe themselves as Mizos, as an encompassing identity. Similarly, while the different Naga tribes were well known, the Naga National Council insisted on highlighting a shared identity, minimising the internal cleavage. It was the tribal identity that stood out rather than Christian/religious identity. The Christian influence, however, was noticeable among the Nagas and the Lushais. There was a strong belief in representation, and the need to engage with traditional institutions of leadership such as the chiefs, to the extent possible. The disposition towards the institution of chiefs, however, varied. In the Lushai hills, for instance, public opinion was much more indisposed towards the chiefs, as compared to the Garos. Overall, there were deep apprehensions among Adivasis of the area regarding the future of India,  whether India would be able to hold out as a single political entity. However, there was no nostalgia for British rule.

Following its detailed enquiry, the Bordoloi Committee felt that there was much unevenness across different Adivasi communities of the region: while some of them had long interaction with people of the plains, a few others such as the Nagas and the Lushais had little such contact. The Committee appreciated the traditions of representation and collective decision-making prevailing among most of the tribes, and felt that there was no reason to deny extension of franchise to them, that would be extended to the rest of the citizen community in India. At the same time the Committee was cautious of the claims to representation made by some members and organisations such as the Lushai District Conference and the Naga National Council (NNC). It took note of the varied and often conflicting claims of different tribes and their supposed representatives: while some wanted all power except defence, external affairs and communication to be vested in their respective councils, others made more modest demands. However, there was unanimity with regard to exercising control over land, local customs, administration of Justice, and regulating access to outsiders. The NNC representatives, however, demanded self-determination for Nagas under a guardian power for ten years, and to be left free afterwards. The concern and empathy of the Committee for the Adivasis in question are writ large across its report even when it disagreed with some of the demands placed before it. It felt that assimilation of Adivasis cannot be forced by ‘breaking up tribal institutions’, but only be through ‘evolution or growth on the old foundations’, something that ‘should come as far as possible from the tribe itself’ (CAD, Vol. VII, p. 110).  It recommended that they should have powers of ‘legislation over occupation or use of land’ (CAD, Vol VII, p. 110) other than ‘reserved forest’ and land for public purposes, and to ‘regulate money-lending’. It felt that with regard to forest management and policy, the susceptibilities of the Hill people should be taken into account. It recommended that the tribes should have full power of administering their own social laws, codifying or modifying them. It thought that ‘all criminal offences except those punishable with death, transportation or imprisonment for five years and upwards should be left to be in accordance with local practice’(CAD, Vol. VII, p. 111). Primary education should be left to the local councils and if they have the necessary resources they could manage secondary schools as well. In such matters as ‘management of dispensaries or construction of roads’ the local councils could work under the ‘executive direction of the corresponding provincial department’. The Committee disagreed with the demand of the tribal representatives ‘that all powers of taxation should rest on the National Councils’, and felt it proper ‘to allocate certain taxes and financial powers to the Councils’.  While management of mineral resources might have to be centralized, the Committee felt local councils needed to be consulted in leasing out, and that a fair share of the proceeds should be assigned to them.

Aspirational Subaltern/Democratic Constitutionalism

I do not intend to subject the subaltern/democratic constitutionalism in India to a critique, but to highlight the difference they mark to the idea of constitutionalism in India.

Subaltern/democratic constitutionalism in India tended to privilege the constitutional moment over the nationalist. This is not merely in the case of the interventions of Ambedkar and Adivasi interventions as found in Reports such as that of the Bordoloi Committee, but in other interventions as well, such as the memorandums submitted by the Naga Club and later the Naga National Council[xxix] or those of the  Adivasi Mahasabha[xxx]. It is important to note that the Untouchable or the Adivasi discourse on autonomy, rights and representation was markedly different from the colonial and nationalist discourse. There cannot be greater proof for the salience of the former that even today they express the major demands of these sections. It is wholly another matter that the colonial regime sometimes employed the grievances of these sections to mount a critique on mainstream nationalism in India.

The issues that subaltern/democratic constitutionalism in India was raising were not sectarian, but encompassed the concerns of the rest as well. There is little defence of the colonial regime that we find in the key documents that this orientation threw up. All of them were deeply concerned in upholding their equality with the rest,  seeking a domain of freedoms and a variegated set of safeguards and supports. They also thought that they were addressing their own life-world with regard to constitutional essentials, what is desirable and what  is feasible, rather than importing blueprints from elsewhere. For them it was the mainstream national movement that appeared partisan.

It is the constitutional antecedents such as the Round Table Conferences and Reports such as that of the Bordoloi Committee that hold the key to the reading of the Indian constitution, particularly to listen to the voices of the marginalised sections. One of the tests to measure the genuineness of these antecedents is the status of their representation and their ability to stand up to interlocutory scrutiny.

We have shown that a close look at Ambedkar’s interventions at the RTC demonstrate that many  provisions of the Indian constitution closely reflect them, although he would have preferred more assertive stances on equality, democracy and accountability provisions and greater curbs on embedded modes of power. Therefore, the charge that sometimes people have made that the Indian constitution does not reflect Ambedkar’s perspectival  vision, is far off the mark.  It also demonstrates that the constitutional provisions are deeply caught in an inter-text that cannot avoid political faultlines. While the constitutional text may provide a bridgehead, teasing out its radical possibilities is essentially a political project.

Question and Answer Session

Rodrigues. I suggest two readings which provide some background on the issues I have discussed. The first is Rohit De’s very interesting piece on the precedents of the Indian Constitution, one of whose final drafts is published as ‘Constitutional Antecedents’ in the The Oxford Handbook of the Indian Constitution, edited by Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta. Rohit De is deeply engaged with Ambedkar, and as a constitutional scholar he provides us with arguments and the kind of precedents that come into play when concerns close to Ambedkar are discussed in the Constituent Assembly. The second text is Ambedkar’s What Congress and Gandhi have done to the Untouchables (1945). I think this book shows Ambedkar’s understanding of India’s national movement. The third chapter of the book is about his encounters with Gandhi, in which Ambedkar marks a continuity between the Round Table Conferences and the Poona Pact and Gandhi’s take on constitutional democracy in India.

Sadaf Khalid. My question is for you and for Romila ma’am. The following Articles of the Constitution address the rights of education and the plight of minorities in India: Article 15, 16, 29, 38, 46, 235, 244, 330, 332, 334, 335, 338, 339, 342 and 371A. Yet the condition of the Scheduled Castes (SCs) and Scheduled Tribes (STs) has remained the same since the drafting of the Constitution. For example, only a few changes have been made regarding their reservations within many universities. What do you think can be done about this problem when it comes to reservation policies in universities? Do you think that concepts like cultural relativism in disciplines like tribal and cultural studies should be taught in schools and universities to instil an inclusive mindset in people?

Rodrigues. Let me start by talking about what constitutional democracy has done for SCs and STs, and to what extent the promises made have been kept—yes and no. When you look at the public services, the quota has been filled in practically all Class I, II, III, IV services, except for a slight deficit in Class I when it comes to the STs. So that promise has been kept, but keeping that promise is not keeping much of a promise. If the state services and public sector employment shrink, then their employment opportunities for these groups will shrink too. The SC representation in the organized sector is only about 1.5 % whereas their population in India is roughly 17%. ST representation in the organized private sector is much less. When it comes to universities, the filling of the quotas for teachers remains abysmally poor, especially in central universities like DU and JNU. Yet there is a glimmer of hope: in the past few years, this quota is being filled up. Governments have been very serious about filling up these vacancies, including the present government for its own reasons.

There are 131 reserved constituencies in India, 84 for SCs and 47 for STs. The members elected from these constituencies have not been very effective in pushing the demands of their respective social constituencies. This is partly because they do not want to be merely identified with the social constituencies to which they belong as this would hamper their chances in the next election, since, as Ambedkar argued, in all these constituencies, the majority belongs to non-SCs or non-STs as the case may be. In recent years, the majority of the SC &ST MPs belong to the BJP. I had conducted a survey on how differently the Congress and the BJP handle their reserved constituency members. While the Congress wants to showcase through them ideas of inclusion, equality, secularism and democracy, the BJP has tended to push them back to their cultural grooves and involved them in their traditional ceremonies. The Congress has a feeble case to demonstrate a competent SC ST leadership, but the BJP is shelving them off from playing their larger role and confining them to their distinct ethnic identities. We found that a large number of SC MPs belonging to the BJP are closely associated with community marriage ceremonies, community cults and festivals and in arbitration over disputes on cemetery land.

There are signs of new concern too. Data tells us that atrocities on Dalits have not declined, in fact they have increased. Even though the increase has been relatively marginal in the last 5 years, when compared to figures in the 90s and early 2000s, the numbers are still alarming. The STs are ‘up in arms’ in several parts of the country—‘up in arms’ not necessarily meaning violent armed struggle. They are up in arms particularly on 3 issues: Jal, Jungle, Jameen because all three seem to be escaping from their hands.

One sign of hope today is that there is a political constituency of Dalits in India, and nobody can ignore it. 17 per cent of the population, concentrated in particular states, has begun to feel that they have a unified political agenda to work out. There is a critical mass of intellectuals that Dalit scholarship has thrown up across the country. There are a large number of cultural practices which Dalits today claim as their own and (that they) are critiquing the system for not providing a respectable place for, such as folk lore. Let us also remember that much of the Dalit assertion today is through relatively peaceful mass movements, a characteristic expression of India’s constitutional democracy. However, a few Dalits in states like Maharashtra and Chhattisgarh have moved over to take up weapons to fight for an alternative type of political or social formation although the bulk of the Dalit movement has not opted for that path.

Except for Class I services, Adivasi quota is wholly filled in public employment and higher education at the central level. It is important to recall that only about 14% of the Adivasi population lives in the Northeast of India. Much of the Adivasi population is concentrated in a particular belt, the Dandakaranya region. This belt alone contains nearly 50% of India’s Adivasi population. Much of the public employment reserved for STs at the central level is accrued to candidates from the Northeast as they have better education and other facilities as compared to other ST communities elsewhere in India. The same is true for reservations in universities. Even JNU has very little presence of Adivasis from mainland India, particularly from the Dandakaranya region. This unevenness has to be reckoned. One asset that the Adivasis have is land, and till the 1990s the average land holdings of the Adivasis was equal to the average land holdings of the rest of the population of India. But these numbers are shrinking, with data suggesting that nearly 50% of Adivasis have been displaced from their land. Professor Amit Bhaduri, in some of his most powerful writings, tells us that around two thirdf the country’s resources, particularly mineral and forest resources, are locked up in Adivasi belt, and they are likely to be further displaced from their land for this very reason. There has not been much of a reach of India’s constitutionalism to these regions. The hope is that movements and initiatives, particularly in Jharkhand and Chhattisgarh, like the Pathalgadhi movement, which pick up from the Panchayats (Extension to Scheduled Areas) Act and the Forest Act, would spread this reach.

Tauqueer. We criticize the fascist program for what it has done to the minorities, but perhaps we too have failed as a secular, progressive, left-leaning body of people to give real representation and participation to marginalized groups. Muslim representation is very low in higher education and political office, especially after the communal forces entered the picture. Is it true that Muslim elite in the Constituent Assembly did not demand political representation because they thought that their cultural and religious identity will be more secure through the Constitution?

Rodrigues. Muslim representation in the Lok Sabha has remained at around 4.5 per cent and in Rajya Sabha at about 3-4 per cent, even though they make up 14.2 per cent of the Indian population (according to the last census). Their highest representation in the Lok Sabha was in 1979: 9.1 per cent, when Indira Gandhi directly wooed Muslims in order to come back to power and put up a relatively large number of candidates to contest elections under the Congress flag. In the past few years their representation in the Lok Sabha has declined further. Muslim representation is less than 3 per cent in all India civil/public services and their representation in the organized industry remains very low. This is an abysmally poor record. We need to reopen a fundamental question: Why should some people bear an inordinately heavier burden of constitutional democracy in India and why should its benefit accrue disproportionately to others? I think the relevance of this question does not begin in 2014, but goes further back. There has definitely been a process of exclusion that has taken place in India, not merely exclusion from political processes and the opportunities it offers, but also from larger societal dimensions like the market. It is important for us to face this particular issue, as all decent societies have done. But I don’t think India’s democracy has been very decent in terms of inclusion—I am talking about ‘decency’ in an Avishai Margalit sense, that exclusion accounts for humiliation. The correctives which we built in the Indian Constitution have come to resemble formal rules and rituals rather than having a strong substantive and enabling effect.

If we look at the debate in the Minority Committee of the Indian Constitution, there seems to be little room for Muslim representatives to make a case for political representation following partition.

Abhishek. You mentioned Sir Syed Ahmad Khan and his contribution to the rise of Muslim nationalism, with terms like khomand mulk. But if we follow the interpretations made by Christophe Jaffrelot, we see that Sir Syed had greater apprehensions about the rise of Bengali intelligentsia, who were talking about ideas like a classless society, rather than Hindu landlords in the 18th and 19th century. Do you think that his idea of Muslim nationalism was more of a counter to Socialism rather than Hinduism?

Rodrigues. I have written a little on Sir Syed, not much, so I cannot claim great scholarship on him. I feel that Sir Syed’s writings have still not been well explored by critical scholarship. A few years back I was a member of the Aligarh Muslim University and I told the Vice-Chancellor that we do not even have a critical edition of Sir Syed’s writings yet, which would be so important for at least three countries—India, Bangladesh and Pakistan, if not the rest of the world. As far as my reading goes, and I don’t cover much of his Urdu writings, Sir Syed did not argue for anything close to the idea of Muslim nationalism, but he definitely argued for the concept of a minority. In a lecture he gave at Meerut in 1869, he argued that Muslims should not uncritically subscribe to the emerging national awakening in India because their weak socio-economic position as a minority would force them to remain on the margins. He proposed certain solutions which might not be acceptable to us but the concerns he raised were empirically grounded—that the Muslims were a numerical minority and had little representation in the emerging colonial and national public.

I am not aware of Sir Syed’s encounter with socialist ideas of classless society, either from Bengal or elsewhere. I still think that Sir Syed belonged to that class of Ulemas who thought that they have to steer the future of the Muslims in India in a wholly changed context of political authority that commanded resources unknown before. Muslims need to redefine their relation with the nation-in-the-offing contending against this authority. This cannot be done unless they enable themselves for the task.

Abbreviations:

BAWS: Babasaheb Ambedkar Writings and Speeches, Volumes 1-22 (published by Department of Education, Government of Maharashtra)

CAD: Constituent Assembly Debates, Volumes I-XII (published by Lok Sabha Secretariat, New Delhi)

[i]James Manor argues to this effect in, “How and Why Liberal and Representative Politics Emerged in India”, Political Studies, 38:1 (March, 1990), pp. 20-38

[ii] The writings of Sir Syed Ahmad Khan (1817-1898) had already started highlighting the political distinctiveness of Muslims in India mainly employing concepts such as ‘watan’, ‘mulk’, ‘qaum’ etc . It was unfortunate that this language eventually led to reinforcement of categories such as ‘minority’ or ‘nationality’, evolved elsewhere as the language of the constitutional discourse in India. {See, HafeezMalick, “Sir Sayyid Ahmad Khan’s Contribution to the Development of Muslim Nationalism in India”, Modern Asian Studies, 4:2,pp.129-147 (1970)}. Also see, MahadevGovindRanadeinvestingShivaji as laying the foundations of constitutional power in India (See his, Rise of the Maratha Power, Government of India, Publications Division, 1961, pp. 52-64) (Originally published  by Bombay, Punalekar& Co., 1900).

[iii]Such as the Lothian Committee Report (1932)

[iv]Such as the Communal Award(1932)

[v]Such as the Poona Pact (1932)

[vi]For a short account of the ‘Nehru Report’ and the ‘Fourteen Points’ see, SumitSarkar,  Modern India, Delhi, Macmillan, 1983, pp. 261-265

[vii]For the composition and account of the RTCs see, Government of India, Indian Round Table Conference Proceedings, 1931, 1932; Also, Andrew Muldoon, Empire, Politics and the Creation of the 1935 Act: Last Act of the Raj, Surrey, Ashgate, 2009.

The unfolding constitutional discourse encompassed the conservative stance represented by Lord Irwin and Samuel Hoare who argued that the best way of protecting the interests of the Raj in India was to expand the net of representation and concede a degree of self-rule to Indians including provincial autonomy and an enhanced say in the central legislature. While this discourse led to the convening of the RTC, representatives of different communities and interests present at the Round Table pitched for enhancing their representation. Among them, the Muslim representatives argued for separate electorate, a higher proportion of representation in relation to population, residuary powers to the provinces, and for carving out Muslim-dominated Sind region and North West Frontier Region into separate provinces. Liberal leaders such as Tej Bahadur Sapru, knowing well that Britain will not concede ‘Dominion Status’ to India at any cost, pushed for the idea of federation, that would include the Princely States as well. Irwin and Hoare were well-disposed to such a suggestion. Representatives of the Princely States, however, were apprehensive of joining the federation, while spokespersons of of the Raj, goaded them to join the federation as conservative bulwark against the Congress. The Congress position itself wavered between ‘Dominion Status’ to full independence. It boycotted the first RTC. Mahatma Gandhi attended the second RTC as the sole representative of the Congress, but did not evince much interest in constitutional details, arguing that the same be left for independent India to decide. While Gandhi was inclined to concede the demand of separate electorate to Muslims he was not prepared to concede the same to the Untouchables.

[viii]While Ambedkar’s reflections on this conjuncture are scattered across several volumes of his Writings and Speeches, Dr Babasaheb Ambedkar Writings and Speeches (BAWS), Volume 2 ( Bombay, Government of Maharastra, 1982) contains some of the key formulations in this regard.

[ix]Aakash Singh Rathore too attributes a similar argument to Ambedkar (See, his Indian Political Theory, London Routledge, 2017, particularly, pp. 192-206).

[x]Anupama Rao has explored this theme in a major study, The Caste Question: Dalits and the Politics of Modern India, Berkeley, University of California Press, 2009.

[xi]I wish to draw attention to Partha Chatterjee’s paper in this context, “Ambekar’s Theory of Minority Rights”, in Suraj Yengde and Anand Teltumbde, eds., The Radical in Ambedkar: Critical Reflections, Gurgaon, Penguin Random House India, pp. 107-133.

[xii]Much of Dalit writing revolves around this theme. Professor Upendra Baxi grapples with this form of marginality in “Restoring ‘Title Deed to Humanity’: Lawless Law, Living Death, and the Insurgent Reason of Babasaheb Ambedkare”, in Valerian Rodrigues, ed., Conversations with Ambedkar: 10 Ambedkar Memorial Lectures, Tulika, 2019, pp. 134-146

[xiii] For a detailed debate on this issue see, CAD, Vol. 10, Book No. 5, New Delhi, Lok Sabha Secretariat, 2003, 429-456

[xiv]For Ambedkar’s speech on this occasion (December 17, 1946) See, CAD, Vol. 1, Book No. 1, pp. 99-103

[xv]Ambedkar felt that the changes suggested in the federal structure by the concerned committee at the RTC were ‘shadowy and not substantial, and the responsibility is bogus and not real’ (BAWS, Vol. 2, p. 596).

[xvi]At the RTC, Ambedkar favoured universal adult female suffrage and joined hands with Mrs. Subbarayan in this regard.

[xvii]In this regard see Raja Sekhar Vundru, Ambedkar, Gandhi and Patel: The Making of India’s Electoral System, New Delhi, Bloomsbury, 2018

[xviii]See, “States and Minorities”, BAWS, Vol. 1, pp. 381-452

[xix]The colonial office strenuously worked to rope in the princes to accept the federal idea as a conservative counterweight to nationalist representatives (See, Muldoon, op. cit., p. 85ff).

[xx]Such areas were few in number and, following partition of India in 1947, included the Laccadive group of islands in the West Coast of Madras province, the Chittagong Hill tracts in Bengal, waziris of Spiti and Lahoul in the Panjab, the North-East Frontier, the Naga Hills District and the surrounding areas, the Lushai Hills District, and the North Cachar Hills sub-division of the Cachar District.

[xxi]They included the East Godavari Agency and the PolavaramTaluq of West Godavari Agency in Madras Province, parts of West Khandesh, East Khandesh, Nasik, Thana, Broach and Panch Mahal districts of Bombay Province, the Mandla District of Central Provinces, the Khondmals of the former Angul District and the Sambalpur District of Orissa, the Chotanagpur Division and the SanthalParganas District of Bihar, parts of Dehra Dun and Mirzapur districts of United Provinces, Darjeeling District and parts of Mymensingh District of Bengal, the Garo Hills District, the Mikir Hills, and the British portion of the Khasi and Jaintia of Assam except Shillong.

[xxii] The Frontier Areas were excluded from such cooption.  Mr. Kezehol, a representative of the NNC, who submitted his resignation during the final hearing in Shillong did not sign the proceedings. There were two members, Mr. Kelhoushe and Mr. AlibaImti, who signed expressing their dissent on some observations of the sub-committee.

[xxiii] They included Khetramani Panda (Phulbani Area), Sadashiv Tripathi (Orissa P.E. Areas), Kodanda Ramiah (Madras P.E. Areas), Sneha Kumar Chakma (Chittagong Hill Tracts) and Damber Singh Gurung (Darjeeling District) as members.

[xxiv]In the recorded hearings of the Bordoloi Committee we often find  ChairmanBordoloi prodding the representatives to spell out their autonomy demands, just to be reined in by Sir B.N.Rau, the Constitutional Adviser, to point out the limited mandate of the Committee that has no authority over wider political questions.

[xxv]It is important to point out that most of these recommendations were very close to the Congress policy and were formulated during and after the Poona Pact of 1932. For the Pact and its implications for affirmative policies in India see, Raja Sekhar Vundru, Ambedkar, Gandhi and Patel: The Making of India’s Electoral System, New Delhi, Bloomsbury, 2018, 41-64

[xxvi]The Committee had adopted a very painstaking method of eliciting the views of the different tribes and areas falling within its ambit that included, holding hearings at the district and the sub-divisional headquarters and documenting the responses of the representatives of different groups through critical probing; visiting select villages for on-the-spot inquiry; and examining closely all the documents concerning a case in point with the officials concerned.

[xxvii] Constituent Assembly of India, North-East Frontier (Assam) Tribal and Excluded Areas Sub-Committee, Vol. II (Evidence), Part I, (p. 42)

[xxviii]Ibid. p. 78

[xxix] See, A. Lanunungsang Ao, From Phizo to Muivah: The Naga National Question in North-East India, New Delhi, Mittal, 2002

[xxx] See, Ram Dayal Munda and S. Bosu Mullick, eds. The Jharkhand Movement: Indigenous Peoples’ Struggle for Autonomy in India. Copenhagen: International Work Group for Indigenous Affairs (IWGIA). 16-30.

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Valerian Rodrigues has taught at Mangalore University, Karnataka, India (1982-2003), and Jawaharlal Nehru University, New Delhi, India (2003-2015). He was Ambedkar Chair, Ambedkar University Delhi (2017-2018). His recent books include The Essential Writings of B. R. Ambedkar (2002), The Indian Parliament: A Democracy at Work (2011) (co-authored with B. L. Shankar), Speaking for Karnataka ( 2018) (co-authored with Rajendra Chenni, Nataraj Huliyar and S. Japhet) . He has edited Conversations with Ambedkar: 10 Ambedkar Memorial Lectures (2019). He was Visiting Professor at the Department of Humanities, Simon Fraser University, Vancouver, Canada (Spring, 2019), Senior Visiting Professor at Julius Maximilians University, Würzburg, Germany (2011–15) and Indian Council of Cultural Relations (ICCR) Chair in Contemporary Indian Studies at Erfurt University and Fellow of Max Weber Kolleg, Erfurt, Germany (2012). He was Agatha Harrison Fellow, St Antony’s College, Oxford University (1989-1991). He received the University Grants Commission National Swami Pranavananda Saraswati Award for Political Science in 2011, and was National Fellow of Indian Council of Social Science Research (ICSSR) (2015–17).