It now looks all but certain that the road to 2024 and perhaps beyond is going to be paved by the wrath of (We) the People. Far from being unidirectional, this anger is pluralistic and polysemic, filtering through the socio-economic fabric with devastating consequences for everyone involved, especially those who have tragically lost their lives and those who have to live with this memory for generations to come. For a republic, this rage is also profoundly consequential because it forces one to contend with the nature of our political arrangement, initiate a rethinking of accountability of political institutions and, most importantly, question the meanings of moral and political ideals. (For some examples of writings along these lines in light of the recent spate of violence in Manipur: see here, here and here.)
This anger also brings to light a peculiar problem for a modern constitutional democracy. What happens when one of the cornerstone ideas of modern constitutionalism best represented by the preambular words – we the people – is invoked not in the service of inclusivity and aspiration but rather as a vehicle for a people who are wrathful? Can the Indian constitution resist a sustained assault from forces representing exclusionary visions when they claim to pursue such action not just from a political standpoint but, crucially, from a constitutional standpoint of speaking for ‘we the people’? In short, how do we think about the Indian constitution as a panacea when its very preamble is used to undermine its foundational premise and the promise of collective destiny?
These are difficult questions to answer, partly because constitutionalism in India, as elsewhere, has always been as much a political project as it has been a normative one. But, in emphasis and understanding, there has been an excessive focus on the normative at the cost of the political. This presents at least two problems that are relevant to the contemporary crisis. Firstly, this belief in the promise and the liberal values of the ‘founding document’ is invoked in the hope that it would provide aspirational relief when politics fails to do so. It is this undying faith that inspired people to come out in large numbers and collectively read the preamble of the constitution in opposition to the Citizenship Amendment Act and the dilution of Article 370 a few years ago. But, in just vernacularising the constitution, the raw political power embedded in the constitution’s letter and spirit did not disappear. It was made clear when with the onset of the pandemic the state stepped in to put an end to these protests. As a rights-bearing individual, one could always seek remedy from the constitution, but at no point of time has the state given up its all-encompassing power. If anything, as we know, among the 105 constitutional amendments that have been passed thus far, with a rare exception or two, they do not grant or extend rights to individuals. On the contrary, several have curtailed the rights.
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Secondly, the project of resuscitating the normative ideals of the constitution fails to appropriately account for people’s anger. In just the past few weeks, we have seen glimpses (and we know that the lived experience and reality of the horrific events in Manipur, Haryana and other places in the country are far worse) of the actions and consequences motivated by sheer contempt, disregard and the unleashing of the wrath of citizens on one another. It is all the more terrifying that minorities are being singularly and systematically targeted in an open, brazen manner that defies all moral norms for individuals and the community. In these times, it is not enough to return to the presumed idealism of the constitution. Instead, we have to ask if constitutionalism can speak to the visceral anger of the survivors of assaults and of those who will forever mourn the loss of their loved ones. And, then, one also has to think about how to account for the anger of the perpetrators motivated by exclusionary ideologies and enabled by a complacent state that often looks the other way at the time that violence is committed. Normative resuscitation can only revive the mythical spirit of the constitution. It cannot revive the body weighed down in a state of obedience.
If one moves away from a strictly normative view of the constitution, one finds a rich body of work that has highlighted several ways in which the constitution has been used and at the same time not used appropriately. But an enduring theme of such studies has been that they ultimately place faith in the constitution as a panacea for socio-political ills. Undergirding the document’s popular roots, or arguing that it is meant to reflect the will of the people as much as it seeks to govern them, and arguing that the courts could in the ultimate regard serve as the conscience of the republic even as all other established political institutions and mechanisms fail, while helpful in limited ways, nevertheless only serves to place the constitution on a pedestal.
Even as one values these approaches for their obvious democratising, ameliorating and progressive impulses in limited ways, the problem is that they fail to see the rising danger of the destruction of the constitution from within rather than without. In other words, the preambular invocation of ‘we the people’ could in its own way become the ultimate instrument through which the edifice of the constitution – and its limited emancipatory potential – could be undone. Saving the constitution from a wrathful people, then, becomes an urgent matter.
One way to rescue the constitution, ironically, is to lessen moral expectations from the document. There is a compelling need to do so, for otherwise, one is constantly forced to reinvigorate the ideals of the document, which for the most part do not exist in historical archives but rather in carefully constructed inductive and deductive reasoning by scholars and likeminded public thinkers. The constitution carries an undue moral burden to speak to situations that have already far exceeded the context in which the document was written. In a proverbial sense, then, the emperor may not be naked but is not fully clothed either.
To be clear, this not a call for nihilism when it comes to the constitution. Neither is it an argument for undoing the limited goods that a constitution does provide and has provided for millions since independence. Rather, it is a call to engage with the constitution by remembering two precepts: First, recognise that a self-sustaining normative value of the constitution does not exist. It is a chimera. The Indian constitution was and has always been about protection and sharing of state power, not a noble document that exists to serve the interests of the citizens. It would be better to consider the constitution as a political and not a normative document. Several scholars have already made this important shift in their research on the Indian constitution. Second, there are important lessons in Indian constitutional history that can provide a tentative pathway to effectively rethink the role that the constitution can play in the socio-political imaginaries. Politics plays an important role here too. It is worthwhile to briefly expand on this latter point.
One of the striking features of constitutional developments in the early to mid-20th century is the well-known colonial context. Strangely, though written about, it is relatively under-appreciated in our understanding of the emergence of constitutionalism in India. A defining trait of this context was that even as Britain wrote constitutional legislation for India in the interest of ultimately defending the project of colonialism, in its impact and implementation it offered ways to Indian nationalist leaders to claim part-ownership of governance and aspire for imagining complete autonomy. This meant that despite their best efforts to uniformly translate the political project of colonialism into a constitutional language, the endeavour did not succeed entirely. Likewise, for the anticolonial nationalists, the language of constitutionalism forced the language of representation, which offered an opportunity for different regional and national interests to speak in their own voices. As such, the process never allowed for a way to translate the mythical idea of national unity into a constitutional project. Constitutionalism, by its very nature and because of the presence of competing political interests, prevented the hegemony of a single representative group. In other words, for leaders of both colonialism and nationalism, constitutionalism never emerged as a faithful ally for their respective political projects. The relationship between them was always tension-prone.
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It is precisely the productivity of this tension that helped different interested groups to stake a claim in the making of the constitution. For instance, Dr B.R. Ambedkar’s rigorous defence of the rights of Dalits and M.A. Jinnah’s stance on Pakistan had deep roots in the constitutional space that opened up in the colonial context. Likewise, others such as the leaders of the Congress and the princely states similarly put forward their constitutional claims.
If there is an important lesson to be learnt from this highly abbreviated account of Indian constitutional history, it is this: the story of the Indian constitution is one of securing state power, and the colonial context enabled the proliferation of different political interests, each making their own claims on such power. In the postcolonial context, with the establishment and entrenchment of the state, the opportunity provided by the colonial context disappeared, leading the different politically organised groups to speak in the language of nationalism or risk being marginalised.
Historically, then, constitutionalism is often strongest when there are multiple competing political interests. It is compromised when there is a singular, strong political force dominant in the country. If constitutionalism is to regain its strength, then the solution may not be to look to the constitution from an apolitical or normative point of view but rather to understand and engage with its fundamentally political character. This may be necessary to not only save the people from the constitution but importantly, in the long run, the constitution from the wrath of (We) the People.
Arvind Elangovan is Professor of History and Associate Chair, School of Humanities and Cultural Studies, College of Liberal Arts, Wright State University, Ohio.