Ornit Shani and Rohit De on Assembling India’s Constitution

SHRUTI RAJAGOPALAN: Welcome to Ideas of India, where we examine the academic ideas that can propel India forward. My name is Shruti Rajagopalan, and I am a senior research fellow at the Mercatus Center at George Mason University.

Today my guests are Ornit Shani and Rohit De, historians and the authors of the latest book Assembling India’s Constitution. Ornit Shani is an associate professor of history at the University of Haifa and the author of How India Became Democratic: Citizenship and the Making of the Universal Franchise. Rohit De is an associate professor of history at Yale University and the author of A People’s Constitution: The Everyday Life of Law in the Indian Republic. 

We talked about how their latest book is a radical departure from the usual telling of the making of the Indian Constitution as an elite project, the mass mobilization that took place during the drafting of the constitution, the role of public participation in political negotiation, the status of provincial legislatures and of princely states during the constitution making, and much more.

For a full transcript of this conversation, including helpful links of all the references mentioned, click the link in the show notes or visit mercatus.org/podcasts.

Hi, Rohit. Hi, Ornit. It is so good to see you here.

SHANI: Hi, Shruti.

DE: It’s great to see you too. It’s always good to be back in conversation with you.

RAJAGOPALAN: Yes, Rohit, you’re coming back. Ornit, this is your first time. I’m very excited, though I’ve read all your other work. This time we’re here to discuss your latest book, Assembling India’s Constitution: A New Democratic History. I actually got the book in India. I have the Indian edition. Between when we scheduled this and now, I also got the Cambridge edition sent to me in a review copy. The Cambridge edition actually has doodles and sketches made by Rohit, which is a very nice throwback to your first book, Rohit, where also you did the cover artwork. Tell us a little bit about the cover artwork, and then we can get into the book.

DE: Sure. The cover, in some ways, brings together Ornit and my previous covers. Ornit’s How India Became Democratic has a grid of Indian voters voting. Whereas my previous cover has these figures of Indian people who are—Pratap Mehta once said, if you think of Leviathan, the Leviathan is comprised of lots of small people. It’s thinking about the state being made up of the people. This one, if you notice, the figures are in conversation. None of them are solitary. Each of the scenes is supposed to represent a scene from the book of people actually meeting and talking about the constitution.

Situating Rohit and Ornit’s Book

RAJAGOPALAN: About the book, I want to start by situating the book in the broader literature of how Indian constitution has been described or understood by scholars. For a long time, the dominant accounts framed the constitution very much as an elite project, though elite can take many different forms and mean different things. One influential version and the most influential or salient is typically associated with Granville Austin. It talks about the Constituent Assembly as this site of extraordinary political leadership, a gathering of the great men and great women who forged together a constitutional consensus amidst great difficulty in the middle of partition and so on.

A related but sharper formulation is maybe Sunil Khilnani, where he treats the constitution almost as a gift bestowed on the general masses or the population of India, and that this group didn’t even fully grasp the gift that it received from the elite, so to speak. More recently, there has been the argument by Madhav Khosla, where he frames the constitution as a pedagogical project and not just as a procedural document where the effort of the assembly and the assembly members was to teach Indians how to deliberate, reason, form consensus democratically.

Then there is another strand, which is a challenge to this narrative, and it shifts the attention from political leadership to bureaucratic or technocratic leadership. This is books or papers, or discussions about what happened in various subcommittees, what happened in the different drafts, discussing figures like Ambedkar. More recently, B. N. Rau’s contribution, this is, of course, the work done by historian Arvind Elangovan. Still, all of these different strands are still very much situating the conversation as one between elites or among elites.

I’ve always found these accounts a little bit unsatisfying because I think they’re very analytically tempting. They’re very straightforward. They’re easier to track. They’re normatively attractive, but ultimately, I find them quite patronizing. Maybe because they presume that constitutional meaning, constitutional imagination, consensus-building, authority, it all primarily resides amongst the elites, while everyone else is just receiving or complying with what has finally been discussed and placed on paper.

Sorry for the long setup, but your book is a radical departure from this entire literature. It directly challenges it. It’s not a radical departure for either of you, Ornit, in your work on India’s first election, and Rohit, in your work on the first set of judicial challenges where regular people in India were demanding that their constitutional rights be upheld. You’ve talked about how seriously people are part of this kind of constitution-making or consensus-building, but overall, this is still a major departure.

What you basically say is, individually, both of you take seriously the possibility that constitution-making or creating a democratic framework it’s neither a gift, nor is it a pedagogical exercise or a lesson, but it’s something that is very actively claimed. It is contested. And that’s why I also love the idea of assembling India’s constitution. It’s a lovely pun to how the discourse normally just focuses on the Constituent Assembly as a physical site.

First up, is this a good way to think about your broader project as scholars? Is it a good way to think about this book, and a fair understanding of this book? Also, that you’re not just adding new actors to this elite-centered story. This is a very different setup and a very different staging, and not just an expansion of existing number of people involved.

SHANI: Shruti, I think you laid it perfectly, very well, the different strands in the literature. Just taking you on from the point about where we’re departing, we’re departing in few ways. We’re departing in our method, we’re departing in the way of understanding, we’re departing in terms of the previous literature you described, which hold some prior assumptions when they look at the constitution-making. What we’re doing, all the works that you mentioned, ultimately, while having different emphases and focus, they all ultimately produce the work based on the constitutional debates and the Constituent Assembly in Delhi, or looking at the constitutional text itself.

What we have done, and as you suggested, it’s based on actually our previous works and on materials we found while we were working separately of each other, during the time we did our previous books. What we’re finding is, in fact, constitutional details were not above the head of people. It wasn’t simply a gift. Even though so many people were illiterate, they were, by being informed by their daily lives and their problems, they had clear constitutional demands. They saw that moment as a moment that can transform their lives, and they wanted to shape it. They wanted to have a say and effect.

What we’re doing then, we’re looking at the constitution-making process by turning our gaze away from the Constituent Assembly. The first thing is we leave the Constituent Assembly to see what happened outside across the subcontinent, and while doing it, we discovered far beyond just people and groups association, we also see constitution-making process happening at arenas that were unexpected, like princely states, discussed in provincial assemblies in other state institutions. The first thing is to take our gaze away from the Assembly, to also ask the question what the public thought about the constitution-making process.

The other thing is not to realize that it’s not simply that because the Constituent Assembly convened in Delhi, and a constitution-making process started, people started to, “Oh, this is happening.” No, in fact, the causality, it was different. It was people starting to write to the Constituent Assembly before it convened or to any state authority that they thought might have anything to do with the assembly, to already express their wants and demands when they realized that the Constituent Assembly is about to convene from early on in 1946. It was really being engendered from outside the assembly, the pressures of people.

Of course, when we look from that perspective, we realize that it wasn’t simply a pedagogical project because people try to educate the members of the Constituent Assembly about themselves. In fact, thinking that they don’t know them enough and that they should understand them. We show it throughout the book with tribal people who meet the members of the Constituent Assembly directly and have face-to-face conversation with them, or people who say, “When I want to express my ideas for the future constitution of India, I want to come and voice it and tell the assembly myself and come to the committees.”

Finally, just to say, if we look at the canonical accounts, which you laid out, and then we think about Rohit’s previous book, A People’s Constitution, is it because on 26 of January 1950, the constitution came into force that a few weeks or months later, 3,000 butchers from across India can go to the supreme court and demand in a very sophisticated way a redress toward the grievances? Or a 23-year-old prostitute? This wouldn’t happen. People wouldn’t just be able to go with a writ petition to the supreme court about the infringements of their rights, just because the constitution, a document, came into force.

It meant that they already had deep understanding, the language, to know about it, and to know what to do with it. That is exactly what we’re being able to do with our departure from the canonical approaches, showing how that kind of constitutional language, practice, and culture emerged. What we do that is fundamentally different, we’re foregrounding the constitutional politics outside the assembly over the constitutional text.

DE: Yes, I just wanted to second what Ornit said about thank you for engaging with and summing up our work so well. I wanted to emphasize that we certainly acknowledge that the Indian Constituent Assembly is a remarkable space with really remarkable people, especially for its time. The only other two assemblies at that moment, in Israel and Pakistan, could not agree and find consensus on a document. There is something to the role played by the members of the assembly in achieving that degree of political agreement.

However, I think across the literature, whether it’s the literature on committees or the literature on individual members, there is a shared assumption of there being a strong gap between political ideas and language and most of Indian society. The gap is seen by cultural nationalists as a sign of how great Indian society is and how far removed political ideas are. Critics on the left would say, “Oh, Indian politics only reflects the idea of the superstructure. It’s very far from the economic base.”

I know that from both Ornit and my previous books, it was quite clear that you don’t know what people think inside their minds, but there’s clearly a strong ability to deploy language, tools, and ideas to achieve these goals in a quite thick degree of what we would call constitutional consciousness. This doesn’t seem to emanate from the finalizing of the text. Particularly, my lawyer friends, because of the demands of the work, are quite obsessed with figuring out why did this text take this particular formulation. That’s interesting. 

Given the fact that we know that the Indian text changes so dramatically, both through amendment and through interpretation, perhaps we have to think about a larger kind of penumbra of action to understand what the constitution is. In our formulation, we take the constitution to be more than the text. It includes both practices and expectations. In terms of sequence, as Ornit said, the text doesn’t come first. The text comes midway through the process. That enables us to see all of these people, both just around the assembly, but also in far-flung corners as actors in producing this new constitutional culture.

More Than the Text

RAJAGOPALAN: That’s super helpful. If I had to put on a slightly more charitable hat toward our lawyer friends that we have in common, Rohit, and also as an economist, the way I think about cause and effect when we think about a constitutional text is, on the margin, what influenced someone to add this sentence or remove this sentence. That’s the standard way of thinking. Now, how do we do that methodologically? We look at all the texts. We look at the debates. We look at a bunch of letters. We look at maybe other constitutions to say, “Oh, this phrasing seems remarkably similar.”  

Then we say, on the margin, this got included, so this must have been the influence, and this got excluded, so it mustn’t have been that influential. This is basically how we do it. There’s a particular methodology we follow when we do textual analysis, and what’s included and excluded. I think the second departure that you guys are pointing to is you are stepping away from the narrowness of that methodological process, which only looks at text, and thinking about the larger constitutional project, which also lives outside the text.

I’m cracking it open a little bit beyond the elite consensus question. Maybe people are just focused on the elite consensus because that’s what we can easily study analytically in a tractable way and methodologically in a tractable way. You can look at archives and letters. What you do is something bigger. Actually, you’re not trying to connect it too much to the text and its interpretation. You’re talking about more fundamentally understanding who we are as a people and how we started on this particular journey. Is that a good way to think about it?

SHANI: To give a little bit of life to exactly what you said now of looking at something that is bigger than the text, even when thinking about the petitions and letters that people, whether they’re groups like different associations, sent to the Constituent Assembly, we’re trying to even trace what’s happening behind this specific petition, letter, and imagine it. There was a big gathering of members of the organization and many more people, and they were assembling together, and they were discussing ideas. Some of them were putting together committees to examine the question of the constitution. Then they had to draft it and to do a vote, and then sometimes to meet again. 

The assembling of India’s constitution is also to try and imagine the many, many, many assemblings. Each letter and petition from a group has huge life behind it in tribal areas when we talk about sometimes gatherings of 10,000 people, 100,000 people. This is part of the life of those texts.

DE: I agree with you that this is really also about method. We’ve joked about this in the past, but I think a lot of social sciences are about finding one variable that can explain multiple causes, whereas history just adds multiple variables to explain something else. There is a temptation, particularly because the assembly debates sound coherent, they’ve been printed out. They’re available and text searchable to treat the assembly debates as a closed space. People have already, even before us, begun pushing back at it.

I think what we begin with saying that the assembly meets for a year over three years. Even if we take the assembly as the only set of actors, all of those assembly members are talking outside the room, but they’re also talking to other communities and groups across the country. Are we just adding another finite amount of variables? I think our argument is that it can’t just be resolved by saying, okay, instead of 10 people, we’re now looking at 100. If we look at 100, it changes how we think constitutional documents work and the life that these documents take.

Particularly for the purposes of, say, litigation, there’s absolutely a value in tracking the textual changes. If we’re taking a step back and trying to explain a larger question as to, even though the text changes, there is a shared sense of certain things not changing. Or why is it that people have chosen to continue with this form of politics and not replace the constitution wholesale, as has happened in many neighboring countries? I think to answer those questions, we have to rethink the larger role the constitution plays beyond just mapping the textual form.

RAJAGOPALAN: Recently, I read a book which has got nothing to do with this theme. It’s called Breakneck by Dan Wang. He talks about how China is an engineering society, and that also seeps into social engineering and things like that, and of course, the problems with it. America is a lawyerly or a litigious society, and how that can sometimes, while preserving civil liberties, also really stall innovation and change, and things like that.

If I had to find a nice version, I would borrow Amartya Sen’s India is an argumentative society. This is an assembly society, exactly how Ornit was talking about, which is people get together, they talk about it, they voice it, even sometimes if they don’t think it’s going to end up making a big change in any way. I don’t think the young people who are reading out the preamble at protests, this is actually going to change anything fundamentally, because they didn’t know the preamble before these young groups of students read it out.

Rohit and Surabhi have a lovely piece on it, but it is the act of doing it. I really appreciate your point about we need to think of the larger assembly without just cause and effect or explanatory variables and things like that. There is a bigger story to be told there.

DE: Just to add, we’re a lawyerly society where we know the courts take 50 years to decide something. India, at 1950, had the second largest number of lawyers in the world after the United States, but it’s also a legal system that doesn’t function like the United States. It’s a lawyerly society without the kind of legalism like the US has. It also has engineers, but it doesn’t have the kind of infrastructure to support engineering work. I think assembly or jugaad or things like that, I think that’s a good analogy itself.

RAJAGOPALAN: Also, a nod back to Ambedkar’s “Grammar of Anarchy” speech. If he wasn’t worried about the morchas and the assembly and the walkout and the protest culture, that speech is entirely unnecessary, and it’s one of the most famous speeches coming out of the Constituent Assembly floor. He’s actually trying to tell people, we’ve given you a document, can you please be more of a lawyerly or legalistic society instead of reverting back to your same old culture of protests and dharnas and civil disobedience.

If he felt the need to make the speech, the impetus must have already been there in society. I think the larger question, which you don’t discuss very directly in the book, which I do think the book can help us answer, is why the Indian constitution has survived in the subcontinent, and none of the others managed to have the same kind of life. I’m not saying the Indian constitution is perfect or the republic is perfect. There are plenty of problems, and we can discuss it, but it has survived in a way that a lot of post-colonial constitutions have just not. One aspect of why it may have survived may be your explanation.

SHANI: Just to add to that, a lot of debate is about authorship. Who’s the author? Is it assembly members? How many of them? Fifteen, the drafting committee, not just Ambedkar. I think our book also complicates that question and, in some ways, makes it less relevant because what we’re emphasizing rather than authorship is ownership. The fact that people started to own, not just the constitution-making process, the constitution while it was in the making, is a key for understanding its survival.

It’s a key for understanding why, as Rohit was saying earlier, why there was no struggle to just change the whole thing in any way as happened in other places. That deep sense of ownership is also a reason why people feel like they can have a say. As we say, our book starts in our first chapter with our constitution. It’s the ownership that is part of it.

DE: If I can give an example, if we look at conventional accounts or even the assembly debates, there is a provision that abolishes untouchability. If you read the debates, almost everyone is in favor of this provision. It almost seems to be, this was the most obvious thing to do. Of course, a modern society was going to abolish untouchability, but you don’t realize the magnitude of the change unless you see the opposition to abolishing it outside. The fact that Ambedkar was arguing in the assembly, but his party, the Scheduled Castes Federation, was organizing on the ground.

The fact that, within the Congress and other political parties, in state legislatures, they were passing a number of laws even before the constitution came into effect. If you just read the assembly debates, it’s like, oh, they were enlightened people, and they were going to abolish it and look at the past without objections. When you look at the amount outside, you realize that actually there is a lot of opposition, and the assembly and leaders like Ambedkar are able to overcome it by mobilizing both within the assembly and outside, creating a social contract almost around caste in India.

It also becomes clear that untouchability is seen as broader than just a Hindu practice. One of the more interesting letters we found was from a Hindu legislator from the northwest frontier province who said that the only way to prevent partition is to abolish untouchability. Untouchability for him was the segregation of Hindus and Muslims both socially, but also physically. It’s taking untouchability from just being caste practice to being something that, to have a democratic society, has to be just eradicated across the board.

RAJAGOPALAN: We don’t realize now how much opposition there was to this. I’ve had these conversations with my grandparents who were young men and women while the Constituent Assembly was convening and being debated. They would tell me stories of their parents, which is basically my great-grandparents, and how one of the biggest issues for both great-grandmothers was allowing untouchables into temples. The great-grandmothers lived in the village. They go to the temple twice a day. This is very much part of their everyday life. There was a deep division on whether this is a good idea or a bad idea, whether they’re going to change the time of day when they do go to the temple. Who else will be around? Will it be socially accepted? 

All these people wrote letters to their local leaders and provincial legislators and things like that. I agree with you that it almost seems like a done deal. We think of untouchability in a very narrow way, but there is a social fabric, everyday life fabric of which market am I going to and which temple am I going to, and am I buying flowers from this flower seller, which impacts everyday life.

DE: The final result is that it’s not just a benevolent gift. It’s a hard-fought victory which establishes certain ground rules, so much so that very soon, even the groups that had argued against abolition of untouchability now realize, well, this argument is not going to work.

RAJAGOPALAN: A lot of those groups today will say, oh, Hinduism has become so modern and it has come such a long way. Hindu society has really evolved. There are lots of other cultures within India that have not quite evolved the same way. We can see that the same groups have a different perspective on the same event.

SHANI: Shruti, what you were sharing about your great-grandparents, it’s showing how transformative it was. Some of the literature you mentioned originally, it’s like, okay, it didn’t change a lot. The constitution, so much of it is coming from the 1935 Government of India Act, et cetera. Indeed, when you look outside, and you see the struggles that were happening outside the assembly, you see the opposition of upper caste groups that Rohit mentioned that we bring in our first chapter, and how Dalits were organizing into action. The story you were sharing, it was very transformative, and people understood that.

RAJAGOPALAN: Yes. A random aside, which, just for a point of comparison, about my great-grandmother, I have two salient stories about what really got her riled up. One was this, and the other was when they switched from anna and paisa to the metric system. Initially, the annas add up to 96 cents to the rupee or 96 paisa to the rupee, and then it became 100 paisa to the rupee. At that point, before we had this rampant inflation, those four paisa made a very big difference, which means every day she was arguing and fighting, and she was completely against this Western metric system that had been imposed on her. The two stories I’ve heard of my great-grandmother, whom I obviously haven’t met, are these two stories. One of them is certainly a colonial imposition. The other one, as you have now recently pointed out, is not one. It’s very much a bottom-up process. Even in my own family context, I very much appreciate that. 

Provincial Legislatures 

I wanted to move along to other parts of the book. The book is very rich. I’m still stuck at the broad brushstrokes. In different chapters, you’ve talked about the other venues for discussion. You talk about how members of the judiciary had a lot to say, and the kinds of lectures and letters they wrote, and the lectures they gave at other places. You talk about the role of, say, All India Radio, and distributing draft constitutions, and pamphleteering, and things like that. There’s also two very important sites from where the Constitutional Assembly is convened. One of them is the provincial legislatures, and the second is the princely states. The Constituent Assembly members weren’t directly elected. They came through a particular formula of one representative per million. At that time, there was still British India and the princely states. After partition, while the constitution is being debated actively, Patel and V. P. Menon are also going all over the country trying to stitch together the union.

The provincial legislatures are very much talking about all these questions. They are the directly elected representatives. Some of these legislators are part of their, like Madras legislature or something like that, but they’re also part of the Constituent Assembly. First, perhaps you can set that up for us. Then I have a bunch of questions about provincial legislators and whether their voice was heard, and so on.

DE: One of the things we wanted to point out is constitutions are not just about a charter between people and the state; it’s also creating a new map of power across a territory. While there is some recognition of the integration of princely states, the constitution doesn’t feature in that story. There’s almost no recognition of the fact that the British provinces were also integrated into new India. Yes, there was United Provinces under British Raj, but U.P. in independent India under the constitution is very different from the United Provinces there.

The first half looks at engagements between people and communities. The second half, we look at existing state authorities that have a strong sense of self. While one can say it’s the colonial judiciary, the colonial legislature, by the 1940s, these are 90 percent Indians. They have a strong sense of institutional autonomy, institutional role. They are acting as an institution representing certain interests to engage with this constitution-making process.

I think it’s significant because if you look at a lot of the reasons why other post-colonial constitutions have failed is that one of these institutions, be it the army or the bureaucracy or the judiciary, has not bought into the constitution. To even understand constitutional duration, we have to think about what these bodies were doing at the time of constitution-making. 

RAJAGOPALAN: There are two ways of thinking about the provincial legislatures. One is they are the ones who are feeding the representatives into the broader assembly because they are the ones who are directly elected. They know the preferences of the people who elected them a little bit more directly. They’re also seasoned politicians. There are a couple of very stark examples in your book which make it seem like they were completely sidelined in the process, or if not completely sidelined, at least not given the same voice that was originally promised.

You have a wonderful example of K. T. M Ahmed Ibrahim, who was a member of both the Madras legislature and the Constituent Assembly through the Muslim League. That was the party platform on which he had won his seat. He talks about how close to 700 amendments to the model provincial constitution were proposed, but when it came time for the Constituent Assembly to consider these amendments, member after member rose and they withdrew their proposals. They apparently withdrew their proposals at the instruction of the Congress Party, which, of course, had the greatest representation.

Then you point out that should we think this was a Muslim League issue? You say in one telling instance, there is S. Nagappa who proposed an amendment that candidates seeking to be elected to a reserved seat should be required to secure a majority of the votes from the Scheduled Caste voters. Apparently, Patel said he’s allowed to move the amendment as long as he’s willing to withdraw it. Then you talk about how Nagappa had been a member of the Indian National Congress since the 1930s. This is one of their own that they’re completely sidelining for bringing up an issue of marginalized communities, but also someone who’s from the provincial legislature.

What is a good way to think about what was happening? Should I take the hint that you’ve dropped that this was a Congress affair all the way and run with it? How do you think about this complexity and nuance when it comes to the status of provincial legislatures and provincial constitutions, which was still on the table at that time?

DE: I think one of the things that this episode you described brings about is that there are at least two visions of how the Constituent Assembly is a representative body. For the assembly’s leaders, especially what Nehru says in July just before partition, it is that the Constituent Assembly is a sovereign body. We’re not beholden to the British Parliament. We are, like any constitution-making body, a sovereign authority.

Originally, the draft constitution was supposed to be sent to the state assemblies for discussion. The Madras Assembly says, can we see it? The secretary writes back and says, “You’ve already elected members to the Constituent Assembly. They’re going to decide it. It doesn’t need to go back to you.” However, in defiance of this, the Madras Assembly says, “Well, actually, unlike the assembly in Delhi, we are a real elected body. We have been in existence for a long time. We even debated the Government of India Act, which was passed by the British Parliament. Why should we not participate here?”

I think in those discussions, it becomes clear that one is a practical question that, as you mentioned, just given what the size of the electorate was, most state assemblies were more diverse in terms of party affiliation and ideological or community representation of the Constituent Assembly in Delhi. This is for a range of factors. For example, the Justice Party was present in the Madras Assembly, but they didn’t get enough seats to make it to Parliament. The Communists were present in the Madras Assembly, but only one member made it to the assembly in Delhi. It’s a far more diverse space. 

They’re also, for the first time, realizing the Congress used to be quite a federated party until ’46. The Central Legislative Assembly barely had any powers. The whip there wasn’t as important. All of a sudden, it’s a large federated party realizing suddenly there’s a strong central command, and they’re pointing out that the Madras members who go to Delhi are not being allowed to act in Madras’s interest. They’re acting according to the central party line. I think we get a number of suggestions, including the assembly members in Madras saying, “If we pass a resolution, it should be binding on the 40-odd members from Madras’s assembly.”

Our assembly should have bigger, more control over their status than what one would imagine an ideal Rajya Sabha to be performing, for example. Obviously, the assembly in Delhi ignores this, but following Madras, every state assembly debates the constitution draft and moves amendments. One of the things that it does, it creates a larger conversation about the constitution in the regions. Vernacular press reports on it, local parties get engaged. People are aware of what is happening, and there’s a lot of critique of the centralizing drift of the constitution.

Someone says, “Are we just dummies? Why do we have these states that are turning us into municipal corporations by moving all of these issues to the center?” It sets up a dynamic that I think has existed in India since then. The constitution can be read in various ways. Do we read it really as a federal constitution, or do we give in to the unitary power structure, which at that time is being done largely through the party?

RAJAGOPALAN: This is super helpful. In the book, you also point out other examples of this pushback was not just in Madras. This pushback is happening in other parts of the country, either directly through provincial legislators or through directly by the people, in many cases in the tribal areas, which are actually still part of British India and do have their own legislators.

India’s Princely States

Now, coming to the question about the princely states—and you both have also written a separate paper, which is wonderful, about constitution-making in the princely states, and I encourage everyone to read it—the princely states are coming one at a time. They’re being stitched into the union, but there’s already the designated number of spots for them in the Constituent Assembly. Originally, it’s 93. It ends up being 89 members from princely states by the time the constitution-making is done. What is a good way to think about princely states, their own constitution-making efforts, and how that’s getting integrated into this broader process?

SHANI: The 93 seats that were allotted to the princely states in the assembly were basically stipulated by the cabinet commission statement. As you said yourself, not all of them came in, and it was only from April 1947 that slowly representatives of princely states started to come in. That’s the less interesting part of the story in many ways. What is more interesting, you said earlier, when you presented that part of the book, you said, “We know the story of Patel and Menon trying to stitch together the union through all these more than 550 princely states,” and that’s the narrative. It was Patel and Menon, they were negotiating, and the famous book, Integration of the [Indian] States.

Let’s go first to facts. The Indian states, the princely states, once the British left India, once India became independent, legally speaking, all the treaties that they had with the British government fell, and they would have become sovereign states. Not only that, the Constituent Assembly had no power over the territories of the princely states. In fact, the princely states, even when joining the assembly, declared upfront in January 1947 that even if they join, there’s nothing that commits them to accept the constitution. The fact that they’ll be part of the discussion doesn’t mean that they accept it, and that they will wait to the end of the process to see if they would like to join or not to join.

Legally speaking, even the instrument of accessions on three subjects—there were these agreements immediately just before independence on communication, defense, and international relations, those only strengthened the sovereignty of the rulers. What was happening in the princely states that formed 45 percent of the Indian territory with 93 million people—so it was a huge territory. In the states, independent constitution-making processes were taking place at the time that had nothing to do with the Indian Constituent Assembly.

Now, these processes were informed by struggles of state people for popular governments, and of course, with the understanding that the Indian Constituent Assembly is about to convene, they gained a lot of momentum. From the side of the princes, it was clear that this was the only way to turn their states into constitutional monarchies, to become constitutional monarchs with a constitution, with representative governments and rights to their people would mean that their state can survive as an entity, and that was the idea.

So many of the states, in fact, imagined themselves as being part of an Indian union, but as a sovereign entity or some kind of sovereign entity within it, whether some as states, some as unions of state, as federations, or confederations. In fact, what we are discovering and showing is that these multiple competing constitution-making processes that were taking place at the time in the states, that these processes were key to the final ultimate integration of the states, and so much of the process of the integration was a result of ongoing constitutional negotiations with the states.

When the draft constitution is being published and is debated in the Constituent Assembly, the members say, “What about all these constitutions that are being written in the princely states?” People in the states had fundamental rights sometimes before Indians got fundamental rights—abolition of untouchability, freedom of speech, et cetera, at least a set of six fundamental rights that were included in those constitutions. And members of the assembly say, “What about that?”

Both Patel and Nehru explain that the states have the right to have their own constitution. At a certain point, the Constituent Assembly appoints a committee to write a model constitution for the states with the idea that there’s going to be a federation where they will be included. The idea initially was that, at the end of the Indian constitution, there’ll be another part that will include all the constitutions of the Indian states, and the idea of this committee was to ensure uniformity.

By the time they submitted their report, sometime in March 1949, this became irrelevant because so many of the states already appointed their own Constituent Assemblies or had constitutions, constitutional committees that already finalized the constitution. It ends up as being negotiations with the Indian union, whereby, toward the very end of the constitutional debates, during the last meetings of the drafting committee, members of the princely states are participating in some of the discussions. There’s a conference of them in Delhi to discuss it.

Parts of the constitutions of the states find their way into the Indian constitution, like the rights of rajpramukhs, like four states are even allowed to keep their own armies as their own independent armies, and a few other clauses which we cannot see today because we can only see them as asterisks that suggest that something was there earlier, because all of these were scrapped in the 1970s. In so many ways, the integration of the states and their merger was not simply a stitching together, but it was done through competing constitutions and constitutional negotiations

RAJAGOPALAN: I want to push back a little bit on this in the following sense. Let’s say we all find ourselves back in time between 1946 and 1948. It’s quite clear that there’s going to be some kind of constitution-making process. It’s quite clear there’s going to be at least one sovereign country coming out of the subcontinent once the colonial rule ends, and very quickly it becomes two with India and Pakistan.

There could be more, as you said, more sovereign rulers or small constitutional monarchies or principalities that forged together in some kind of federation because each princely state is figuring out how they’re going to deal with their sovereignty. There are people who’ve written about how federation was an interesting model. Lots of princes were conferencing with each other, but they also had lots of problems. They didn’t get along very well. They didn’t have much unity, but that was going on, apparently.

Now, let’s say that the Congress Party and the Constituent Assembly takes this enterprise very seriously. I would imagine that there is a bigger effort at the drafting stage to include that. India’s constitution famously has all these schedules that are attached at the back. It started with eight schedules right at the get-go. I would imagine something like another schedule, which was added there, which said, these are the different princely states. These princely states have their own constitution. In case of a conflict, what will happen? Are there eclipse clauses? Which princely states are allowed to have their own army? If they’re on the border and things like that.

We don’t see anything of that color emerging. There were a lot of these schedules that were being debated, that were being drafted in subcommittees well before that. You do point out that there is a subcommittee for princely state constitutions, but they don’t seem to take the enterprise seriously.

SHANI: They didn’t have the legal rights. They couldn’t do it legally.

DE: They had no power to make a constitution.

SHANI: Exactly. They had no legal power to do anything about the constitutions of the states. That’s first. The Indian draft constitution couldn’t even, and did not even, include a clause that would set or stipulate some terms for how, what would be the procedure by which the states would accept the Indian constitution, because they didn’t have the legal right to do that. 

RAJAGOPALAN: That seems very counterintuitive. They don’t have the legal right to stipulate anything, but they now suddenly have the legal right to just impose the constitution wholesale on the princely state based on a very flimsy instrument of ascension, which didn’t include the union constitution being imposed in the first place. It sounds very disingenuous when you put all the pieces together.

DE: I think there are two other factors that are playing a role, and I think adding constitutionalism as a framework helps us think through them. As the accession letter says, you’re just handing over a few powers to us and come to Delhi and participate. It’s only when they come to Delhi to participate, they realize all of a sudden they’re in an assembly where they are a minority, and they are dependent on the government’s welfare, and they agree to the constitution applying.

This is the end part of the story. In the first part, they are all concerned about the challenge to the authority from inside their kingdoms from people mobilizing. One way to stave that off is to democratize power inside the state. A lot of these experiments are that we want to transfer sovereignty inside the states. Interestingly, when they’re signing the accession letter, in some cases, elected state legislatures say, most prominently in the case of Manipur, but also in the smaller states of Odisha and others, “Why is the prince signing away the rights? It is us, we are an elected legislature, we should be consulted.” It is convenient then for the central government to not engage with this.

There is a language of constitutionalism, and there is obviously a ministry of states that is trying to maneuver around it. The second part of this is we often think that this inevitable process is always going to happen. If you look at other places across the British Empire—Malaysia most directly as a place where the princely states federated with British-governed territories, and they have a unique system with a rotating sultan as head of state, or something like the UAE, which is basically a confederation of minor princely states—one could imagine that Gujarat, Saurashtra and Kathiawar and all forming a big trading block by themselves. The reason why this doesn’t happen in some ways is also a commitment to constitutional processes. What makes this, in some ways, a nonissue is something that Ornit has worked about is a creation of a national electorate and universal adult suffrage, which is what gives the legitimacy to the process later on. Hyderabad, for example, is the only princely state that has no representatives in the assembly.

RAJAGOPALAN: Yes, 16 seats, and they are the largest princely state.

DE: Even Kashmir is in the assembly, and Sheikh Abdullah signed the constitution. However, not only does Hyderabad become a site of immense constitutional litigation, it’s the one place where a social movement forces the assembly to rethink its decisions on linguistic reorganizing. It’s also a site where, eventually, the new state of Telangana is basically the former state of Hyderabad.

It’s clear that democratic processes like elections, which are happening alongside the making of the constitution, is what is tying it together. I don’t think this would have worked only with coercion or with some backroom dealing. It works because of the language of democratic constitutionalism that becomes dominant. There are exceptions to it, and I think we highlight some of them in the book.

SHANI: How genuine it was, in fact, is in May 1949 when B. N. Rau, as the delegate of India in the United Nation, deals with Hyderabad. He’s trying to get representation in the United Nations about its sovereignty. He said, “If these states are going to indeed get their independence, there won’t be India.” He is alarmed, saying in the UN, there won’t be India. It was understood as a real threat, of course, in relation to the big states.

In fact, the Indian government had a huge problem with some of the states. We found a report from March 1949 of the Ministry of States where they, for the first time, just toward the late stages of the constitution-making, admitting that all this constitution-making that is taking place in the states and the unions of states that are being created—at the time, they talk about the union of Rajasthan and Saurashtra—that they actually, even though they assisted, as Patel did, and encouraged some of these federation or confederation when they were created and negotiated between the people and the princes, that there’s no clause there in those unions of states, in the covenants that put them together.

There’s no clause that gives the Indian government power over them. The first time it changes and the Indian government is able to put a clause like that was in the third formation of Rajasthan, which gradually became a bigger confederation, only in ’49. This constitution-making process was not just something that was happening in the state. So much history was suggesting in the past the states were doomed to fall by that time. It was clear that they’ll become part of India, but it wasn’t that clear to--.

RAJAGOPALAN: Especially not to the princes and their divans who were representing them. If I had to back up and tell you, not the academic literature, but the folk versions of these princely states, one folk version is that the civil disobedience movement and the Indian nationalist movement was not just against colonial governments. It was also against the local monarchs, some of whom were very, very problematic and really deprived their subjects. There was a movement from the people in the princely states that they wanted to abolish monarchy. When you have 560-plus princely states, some of this is true for each one. 

A second version of this is these princely states weren’t that interested in governing. They were just interested in the money. Once they made the deal on privy purses with the union of India, they were only too happy to give up governing and leave with their castles and their gold and so on and so forth. Live a happy life and play polo. That’s the second version of it.

I think the third version is that I don’t think anyone anticipated that the provisional government of India, which was basically Nehru and Patel at that time, had the kind of strength that they imagined, because the partition was a complete mess, and they couldn’t arrest the violence and the chaos. By the time they take the army to different princely states that are not acceding, especially the Nizam, who’s essentially signing things over while looking into a gun, they realize that they may not have had the police state capacity to arrest some of the violence in the transition, but they very much have the army behind them, and this is going to get very uncomfortable and bloody very quickly. Once the Nizam folds under the threat of the army, it’s like everything else just collapses because that’s the biggest princely state and the largest holdout. That’s the third telling of the version. 

Now I’m thinking about what you’re telling us as the fourth layer, because the constitution-making in all these states and the sovereignty of both the monarchs and their people has not been considered in this story at all. The story is entirely told from the lens of people who are pro-the Congress government and anti-the Congress government, depending on where you sit and stand.

DE: With the other layer, we think of what is left in the constitution. The original draft of the constitution had in one of the schedules Part A states, Part B states, and Part C states. Part B and a chunk of Part C were basically princely states. As Ornit has talked about earlier, because they were trying to negotiate with each state separately, you would have situations where states would get different packages. We tend to think of this as, “Oh, this is only about Kashmir,” but actually, if you go to [Article] 371, India has a fairly long history of asymmetric federalism, which goes back to this moment.

I think one of the challenges is that, because of all the Indira Gandhi amendments and the deletion of all of the princely state provisions, it seems to have been erased, but it was very much a significant factor in the forming of article 3, and also in the nature of Indian federalism that came about that seems to have vanished earlier. I also think in one of the early drafts, Ornit, wasn’t there a schedule that they could attach princely state constitutions to it, or a proposal—?

SHANI: Sorry, that they could?

DE: A schedule with princely state constitutions or a proposal for a schedule?

SHANI: The plan was that this will be attached at the end of the Indian constitution. There’ll be a part, and a part which will be called states constitution, which will include all the constitutions of the states. Going back to what you mentioned about the previous narratives don’t even bring the people, relating to something Rohit was mentioning earlier, the negotiations with the princes, this was where different groups in the states were also moving around and changing their own versions, whether they want to have the prince, don’t want to have the prince, whether they want to merge with this province or not that province, and saying we now have a legislature and this is our decision, not the monarch, as Rohit was putting it.

At the same time, when we look closely, for example, at the making of the constitution of the state of Rewa and Ratlam, and when you look deeply into the constitution-making process in these states—these are states that are not looked at, but represent many more states rather than Hyderabad or Kashmir or the exceptions in many ways—the people actually wanted a constitutional monarch. When the head of the constitutional committee goes around Reva and meets hundreds of people and different representatives of the public, they all want to have their constitutional monarch. They also want their popular representation in government. The monarch was important to them.

That’s the other angle. The story was not uniform in all the states, which also made it a little bit complex. When you think about Saurashtra, the rulers made very easily, they signed the covenant of agreement to make the union of Kathiawar, but then the people of Saurashtra forced a completely different union. It’s politics that ultimately also informed not just Indian constitution-making, but politics in India later on. So many of the residues of the entities of states remained later on, whether it was in tax laws or in the different legal systems that were existing there, that took even extra years to be adjusted and aligned to the Indian legal framework.

RAJAGOPALAN: Also, the monarchs didn’t lose their influence and power overnight. A lot of them actually stood for elections in the first election, the way you’ve talked about, when you’ve traced that entire story. Even today, I think Gayatri Devi holds the record for winning by the largest popular margin in democratic history anywhere in the world or something like that. That story continues all the way till the Emergency. I appreciate what you’re saying about the politics of it.

There’s this other thing where sometimes when I read the Constituent Assembly debates, I worry about these great men and women coming together to make this great document kind of thinking. There’s some very dodgy things going on in the constitution. You’ve pointed out some of them about how amendments are being forced to propose but withdraw it. There’s a lot of action happening within the Congress Party, and the Congress Party whip is doing certain things.

My favorite sham or farce proceeding is actually the election of Rajendra Prasad as the president. This is happening on 24 of January 1950. H. V. R. Iyengar is speaking, and he says, “Mr. President”—and this is the president of the assembly, which is in fact Rajendra Prasad—he says, “I have to inform honorable members that only one nomination paper has been received for the office of the president of India. The name of the candidate is Dr. Rajendra Prasad.” Loud and prolonged cheers.

“His nomination was proposed by Pandit Jawaharlal Nehru,” renewed cheers, “and seconded by Sardar Vallabhbhai Patel,” continued cheers, “under sub rule of blah, blah, blah. I hereby declare Dr. Rajendra Prasad to be duly elected to the office of president of India by prolonged cheers.” This is how we selected the first president. Sometimes, some of it just seems a little bit off. Do you know why I am a little bit attached to this Congress Party, having this overwhelming influence on constitution-making and elbowing their choices into the final document when they wanted, and getting into the consensus process when they thought they had no other choice?

DE: One of the things you pointed out is that there is this pre-constitutional, post-independence period where the government is really flexing its power in ways that are unexpected. A lot of the ’50s is they’re shocked to realize that now that there’s a constitution, they can’t do it like this again. They perhaps don’t even anticipate the ways in which this constitution will bind them. I also think this is something that happens vis-à-vis the states, where their idea that they could exercise power the way they did in that period post-1950 gets seriously challenged.

I think one of the things that’s interesting for both of us in the moment is that people don’t know how the constitution is going to work. There are a lot of different readings of what it would mean in practice. They also don’t know what adult suffrage is going to throw up, because nobody has ever had a pan-India election, entirely new representative mechanisms. The Congress thinks it’s going to win, but it is always surprised when it does not. My favorite moment is when the Madras, Bombay, and Bengal people realize that all of a sudden they are no longer going to have power in modern India. The power has moved to the Gangetic Plains. It’s pretty late in the day.

RAJAGOPALAN: The writing is a little bit on the wall because there are so many instances where G. B. Pant has this outsized voice in the assembly process. We think of Congress as like Nehru and Patel, but actually, Congress, it has a huge conservative faction, which is a little bit closer to Prasad. They are constantly lobbying both the party and the assembly on things like cow slaughter ban and things like zamindari abolition. You do see the politics of that popping up. I didn’t mean to suggest that politics disappears. It’s just sometimes you have these remnants of presidents being elected through prolonged cheers that make me pause a little bit longer.

SHANI: This is part of also the theater of the assembly.

RAJAGOPALAN: Absolutely.

SHANI: These moments are the theater of sovereignty of a body that couldn’t really claim sovereignty in terms of not being directly elected. A body that had to gain legitimacy, partly we suggest, through this process of ongoing public engagement, and was in waiting for official recognition of sovereignty with the coming first elections that were delayed and delayed and delayed, and were waiting by then, even before the first amendment is coming.

Partly, there’s something about those rituals, the moments, like the one you described, or there are other moments like that in the assembly that are part of this theater of making a sovereign body. In our chapter on the Constituent Assembly, we actually try to show it even by both looking at procedures and even at the design, how they were thinking about the paintings on the wall.

Mass Mobilization

RAJAGOPALAN: Yes, empty portrait frames is my favorite part of the theater of the Constituent Assembly. Visually, you describe it beautifully. Before we also fall into the same trap of only talking about elites and elite institutions, I want to move the conversation to the part of the book which is about mass mobilization. This is really through the different assemblies of the people, the letters that are being written, the pamphlets that are being distributed, and radio shows, and so on.

You have three different flavors to that.

One is just people writing letters even before the constitution-making has begun, even before we really know what that Constituent Assembly is going to look like. The second is once we know what the assembly looks like, they start directly writing to the assembly or the assembly members and try to attend meetings or so on. Then, the third is the later stage, which is the draft constitution in Feb ’48. This is the constitution that gets printed and distributed. It sells out. It has four or five reprints. It is translated into [different] languages.

It’s condensed and published in newspapers. There are All India radio programs and debates, discussions. Everything from addas under banyan trees to big darbars, this is what’s occupying people. Once we start thinking about it, pre-partition India at that time is about 400 million people. Even if you take hundreds of thousands of people, you’re talking about a very tiny subset. It’s 0.1% even that we’re talking about. How do you square that away? Is this just more like a power negotiation exercise?

It’s just that what you guys are saying compared to what Granville Austin and other people are saying is your scope of who has power and voice and ability to negotiate is just a much wider ambit than the others, or is this genuinely different? This is a mass mobilization exercise, this is what most political mass mobilization exercises look like, because it’s got a different flavor to, say, Ornit’s book, which is literally about how India democratizes. That feels much closer to a mass mobilization movement, especially because it’s one person, one vote. You can literally count the 400 million, and out of those, who’s going to have franchise. This just feels a little bit different in that sense.

SHANI: One has to think about, there is a wider ambit that we’re talking about. We bring many more new actors into the story, but that’s not the main point. In some ways, the main point is, it relates to something that Rohit was mentioning earlier about associations and the culture of association. Every letter that arrives to the assembly, or at the time, say, if we look at the time after the assembly convenes, after just once the Constituent Assembly setting up the advisory committee, and the public knows that the advisory committee will appoint the minority subcommittee, fundamental rights committee, et cetera.

Once this is happening, the public wants to have representation in this committee. They want to educate the assembly about this is who we are, you don’t know anything about us, and this is what we need. They think far beyond colonial categories, many more groups that present themselves in new and different ways. Now, imagine every such letter that comes in, what is behind it? Behind it is, yes, there is an organization that meets up, but to meet up, they need a space. It’s a big space, a school yard, a temple in the forest.

We show in tribal areas gatherings of more than 10,000 people, 100,000 people. It is masses. It’s true that those who communicate, as you said at the beginning of our conversation, they have always been elites of elites, tiny elites, even in the most marginalized groups, that’s true, who might be the literate one to write the letters and send it. Or we have groups that obviously didn’t have that sophisticated elites, but nonetheless made the effort to write to the assembly in English, to speak to the assembly in the language that it spoke.

Such a letter, such a gathering, in fact, reflects, when you go into it, real wider masses because you have some organizations that say, we represent 40 million people. All groups that say that we are backward caste, we represent 40 million people. I want to connect it to the context which you mentioned, which is at the time, there’s the making of the electoral roll. At the time, each one of those adults is being registered as a voter.

Another section of the secretariat of the Constituent Assembly is making ongoing efforts to explain to them, this is the meaning of the vote. Now you’ll have the power to affect your government, to vote for your government. This is also a big flux in terms of the politics and the many unknowns. Even if you think, okay, is it when the scale is even 10,000 letters, 20,000 letters, 30,000, it’s still small. One has to imagine what it meant far beyond the assembly in terms of how it reached publics and trickled down. 

DE: I just want to say that we’re not just adding a movement from an eight-member oligarchy to a 50-member oligarchy to maybe a 2,000-person group.

RAJAGOPALAN: I didn’t mean to suggest that. I meant to suggest a different imagination.

DE: I think, in a way, what we’re trying to do by asking this question and taking it out is to change how we think about constitutional authorship or production of ideas. I also think, the numbers thing, in a way, always breaks down in India. You have a lot of work on, if you follow some historians of the left, India was on the brink of a revolution. There was a powerful communist party. You count the numbers, it’s actually quite small. It’s mostly some trade unions in major cities.

Similarly, when you start looking at numbers of people who are in the RSS or other right-wing organizations, it’s still pretty small. The numbers do not indicate the degree of influence the ideas of both the left and the right could have. What we’re showing is there’s actually a wide circulating body of ideas. In some cases, it’s been produced by the people. In many cases, it’s being consumed quite widely. They’re not just writing to the assembly. They’re also speaking to each other.

Then different groups find out what other groups are saying, and they try to counter. There is a public sphere that is emerging that is not mediated by the Congress Party, but it’s been produced around the making of the constitution and driving forward that document. Finally, I know you’ve not asked us this question, but we get asked this a lot, is what do we do with the language of the petition, which is often in English? If there’s a letter coming from, say, Munda tribals in English, is it an authentic letter? 

RAJAGOPALAN: I find that question offensive. Personally, I find that question extremely offensive, but carry on.

DE: Yes, every time, to communicate with the state, whether it’s in ancient India, in Sanskrit or whatever, or in medieval India and Persian, you have to speak the language of the state. If they did not write, as some people did, it says a letter in Santali, which nobody could read, the only way they would be heard is if they took the effort to find someone who would translate their work into English. Now, we dismiss it because they’re speaking English, right? There’s a moment where, actually, Jaipal Munda in the assembly, someone points out to say, “You wear a suit, you speak English, you live in an imperial hotel, so you’re not really a tribal representative.”

He says, “Well, should I come here in my feathers to demonstrate my tribal identity?” I think the how much is enough to measure democratic participation can’t just be done by numbers. There has to be like a way to think about communication, vocabulary, and circulation of ideas.

SHANI: Shruti, just to add to Rohit, it’s not just about the question of does it reflect democratic participation? Because what we’re saying ourselves in the book is that this engenders a process of democratization. It doesn’t mean that it’s democratic. It does engender a process of democratization in the way it is being trickled and the wide range of these ongoing constitutional politics. 

RAJAGOPALAN: No, you’re absolutely right. Like when I was giving out the numbers, I think that’s just my economist brain trying to make sense of the world. I don’t literally mean like you go from a subcommittee of 12 people to a Constituent Assembly of 300-odd people to, you know, 3,000 people. I don’t mean that literally. I mean it more in terms of the way we think of mass movements, say, during the Emergency, or even the Indian nationalist movement, the various civil disobedience, the Satyagrahas, the Salt Marches. The numbers there are really different.

I know India is a place of scale and the numbers are always like really off, but I always wonder if, when we think about who’s getting included and who’s getting excluded, we are being thoughtful about not just the representation in terms of diversity, but the representation in terms of, maybe density would be the right word. To me, in that sense, the All India Radio programs, those sorts of things represent density much more than just the letters, right?

There is a question of who is actually writing. Sure, it’s the few thousand Adivasis who actually know English and have been to school and wear a suit who are writing the letters, but there might be a broader group of people who are actually listening to the programs. Then, there might be an even broader subgroup of people who are going to the morchas or the darbars where all of this is getting debated in their constituency or wherever their representatives are meeting.

Is there a way of layering this and making sense of it? Because the actual constitution-making, the reason we love it so much and it’s so analytically tractable is, it’s so clear. It’s like, “Okay, this guy’s the president. This guy’s the adviser. He’s the chair of the drafting committee. There are these many subcommittees. These are the people who chair each subcommittee.” It’s so neat and so tempting in some sense, right?

DE: I think that’s the kind of archival error, right? One of the things we discovered is, we all know this. No one talks about it. The assembly physically meets only for a year of the three years they’re in session. Members keep leaving, dying, departing. Their degrees of participation aren’t measured in the documents. Hansa Mehta, who we found is in the assembly speaking maybe twice on the records, one of which she’s singing a song, one she’s giving the flag, but if you start looking at subcommittee meetings and other texts, she’s—

RAJAGOPALAN: She’s everywhere.

DE: —everywhere, who originally isn’t on the subcommittee. She gets in only after Amrit Kaur and others say—because they keep saying, “We already have one woman. Why do we need two?” Right? There is a way in which the neatness of the record doesn’t show what’s happening. There’s also lots of clues, right? You see, for example, someone, Thakur Das Bhargava, insisting on cow protection being under fundamental rights Friday evening. Monday morning, he’s dropped the demand.

We know he met somebody. Somebody talked to him. There was a redrafting. Even Austin says, all of this happens outside, offstage. What we’re doing is just expanding what that offstage is. The offstage is much larger than just the offstage of the legislative hall. 

SHANI: No, I love the point you made about the radio represents the density because when we discovered how many programs were on the constitution and different aspects of the constitution, and in so many languages—Radio Lucknow, Radio Trichy, and the program for school children, program for women, program for understanding different procedures and terms of the assembly, the range of it and the culture of listening to the radio. There’s the book by Isabel Huacuja. 

The culture of listening to the radio—and it’s the masses, right? It’s not because every family has a radio transistor, but if one family in the village has it, many people can come and listen to the radio. I like that point. And it’s through our digging into the Listener, the All India Radio magazine—actually, the recordings are mainly of the assembly—one can see that. The point is, again, going to the methodology.

If we’re just focusing on the Constituent Assembly debates, there’s no way we would get a sense of it. Then, of course, we would end up with the notion of small elite groups, few key men and women, this oligarchy of Granville Austin, but if we go outside, then it expands, and it means that we pluralize the sources of how do we study constitutions and constitution-making.

DE: Even for the letters, especially for groups that are not well represented in the assembly, there is a need to demonstrate they have support. Some of the Adivasi letters from what is now Jharkhand, we have a letter which is signed by students. It’s attached to signatures from students of a variety of schools across the region. They’d say students of class 9A, and there’d be 25 names on it.

Yes, you might circulate something for people to sign, but even that act of something being circulated means there’s some communication. While certainly there are letters that, as a South Asian academic once told us, Indian uncles write letters to newspapers all the time. There are some that are definitely the genre of some guy sitting in his room dashing something off. Most letters, to be produced, have a constitutive impact. Think of that as a mini production or a mini radio show that is bringing things in.

RAJAGOPALAN: I think it’s important. Again, in the social science, especially in economics, we always ask, compared to what? Okay, you’re talking about elite movements versus what? Okay, mass mobilization. I think another lovely aspect that you bring out, which again goes under noticed in the traditional literature, is that there is a theatrical element to the assembly. This is the elites getting together and almost performing how a constitution would be written were it written by a proper assembly somewhere else.

Theater and the Constitution

They’re in some sense mimicking a little bit. I don’t think that takes away the legitimacy. There are some really strange things. For instance, that Hyderabad not having any representation. This has haunted me for years. From the day I figured this out, it’s driven me crazy. There’s another one. We elected the president of India with prolonged cheers and an uncontested nomination. 

It’s also like, okay, if you think that people writing letters from Adivasi groups in English doesn’t have legitimacy, this is not exactly dripping with legitimacy either. We’re partially joking and making fun of the 6,000 pages of constitution-making that we’ve all been traumatized reading for decades at this point. It does somewhere start mattering.

SHANI: What we do in the book after the four chapters of looking at a range of constitutional politics, constitution-making outside the assembly is going back and revisit the Constituent Assembly. We look at it as the theater of the assembly. A very important work to mention here is Steve Legg’s work on roundtable geographies, where he did work on the roundtable conferences and looked into the question of the atmosphere and the theater of these roundtable conferences.

As you say, this theatrical element was necessary for the assembly to actually make itself. As it claimed, we are a sovereign body, a sovereign body that was not elected by everyone. It had an issue of legitimacy, and partly this is the way. A lot was invested in doing so. We do talk about the Congress expert committee that was sitting ahead of the convening of the assembly to think in advance about all the procedures and some of the rituals and look elsewhere to try and see that.

Of course, this was also what enabled the work of the assembly, to change the decoration, to put the lighting, the acoustics, the empty frames. Of course, if you break it down to the members—and partition, there’s violence, rationing, there’s no fuel, there’s scarcity of food. And you need to feed these people, and some of these people, each of them have their own habits and demands. We take one person who kept his records very well to be able to show the readers what it meant to host in Delhi a member of the Constituent Assembly. This theater is very important.

RAJAGOPALAN: The theater is important. It does lend legitimacy, but it’s also interesting for me how one of the things that I know for a fact lends legitimacy is how many of the themes that are discussed in the letters are salient today. You guys are very careful as scholars. You never make the connection to modern day; you just leave it to us, but it’s literally in every single chapter. If you look at the anxieties of the provincial legislatures, they’re saying, “Hey, Delhi’s taking over, their numbers are [bigger]. What’s going to happen to the rest of us? This was supposed to be like a union of states and provinces, but it seems to be highly centralized.”

You can easily imagine Stalin saying the exact same thing today. I mean M. K. Stalin, not Stalin Stalin, saying the exact same thing today. If this got published in the paper, no one would blink. 

It’s the same thing with Chief Justice Kania. Is it going to be the executive or the judiciary which has primacy in appointing judges has been going on for such a long time, and they basically just have a gentleman’s agreement and they never clarify it in the constitution because, of course, this is a provision where we want a lot of vagueness and no clarity.

Then, 75 years later, it’s still completely vague. Now we’re basically appointing judges through a memorandum of agreement and we’ve completely abandoned article 124. That is another continuing thing. The Madras legislature, people are talking about Tamil versus Telugu, the Khasi states, Manipur, all the northeastern belt, both the tribal parts and also how states get integrated. Layer after layer, you know these are legitimate, and these are legitimate claims, and they were meant to mean something because of the fact that it’s just persisted for so long. Is that a fair way of looking at sort of mass legitimacy?

DE: You’ve captured our argument because if we look at founding moments, there is something about a moment that is complete, right? This sets the parameters, it is there. The fact that these conversations continue but they also continue in shifting and changing what the constitution means sort of makes us move to the idea of assembling. We use a simplistic analogy in the book, right?

When we think of founding, it’s something monumental. We come together in a collective effort and we immerse these ideas in the foundations. If the building collapses, it’s because the foundations are weak, and you have to rebuild something anew. When you assemble something like IKEA furniture, it might work with a few different tweaks. You can add additions later on. Some things will make the whole thing collapse, but you can kind of patch it up and you can actually move it from place to place, right?

RAJAGOPALAN: Also, like a Ship of Theseus kind of thing, you’re going to change a few things.

DE: Something that is basic, right? With Theseus, you could replace every part. In an assembled feature, if you remove the basic structure, it’ll collapse, but it can do with some addition and some subtraction. In a way, that helps explain the moment more. I think a lot of the founding language really comes from the American constitution being such a centerpiece in constitutional histories. It’s an outlier. It’s an aberration.

RAJAGOPALAN: It’s an outlier. 

DE: Nobody else follows it. It really shouldn’t be the basis for understanding other places.

SHANI: No, Shruti, what I wanted to say is what you captured is one of the basic arguments in our book, that this engagement from outside the assembly with the constitution in the making turned it, while it was already made, into an open site of struggle. All those things that you were mentioning are a manifestation of how it is still an open site of struggle. You have the text, but then it’s democratic politics that continues to give it shape and is being animated by the notion that it is unlike a founding or unlike the American text that is so difficult to change. It is an open site, the number of scheduling amendments.

DE: Someone had asked us, is there anything in the book that is really of that time, we can’t make sense of it anymore? We really struggled. The only thing we would come up with is that a lot of people believed remaining in the British Commonwealth would heavily curb Indian independence, or that there would be something like Commonwealth citizenship which would allow for mobility through the Commonwealth. Apart from that, everything else, we were surprised as well as how current many of these claims and demands seemed to be.

RAJAGOPALAN: I would also say princely states. I think that is an idea which disappeared. I don’t think it had too much salience to start with. This is also there in Ornit’s work. The princes also very quickly read the moment. They get it. They’re like, “Oh, the world has fundamentally shifted. Now we need to stand for elections in our own constituency.” There’s a lot of conversation about this is our land. It’s going to be so strange begging for votes before our subjects.

They very quickly adapt. I don’t see anyone making noise about this anymore. Other than Saif Ali Khan, no one’s calling anyone a Nawab. No one’s really using titles. It’s not even like it’s an issue or you’ll be poo-pooed for it. It’s just a nonissue now. Even if it was salient in the ’70s with the privy person getting abolished and stuff like that, I think that might be another remnant which has just completely disappeared.

DE: We’d argue that the princely states remain as an invisible background. If you even do a count of how many chief ministers of former territories of princely states come from ruling families, everyone from Virbhadra Singh in Himachal Pradesh, Amarinder Singh in Punjab, there’s a range of former princely elites. 

RAJAGOPALAN: No, I don’t mean the princes disappeared. In popular imagination, I think people just took the idea of we are sovereign and we are the individual voters, we have universal franchise and just ran with it. We have caste hierarchies. We have other hierarchies and status. The princes being the special thing has just disappeared from popular imagination.

DE: If you think of the princely state as a political identity rather than sovereignty of the prince, but that identity remains a salient political identity.

SHANI: You know, where we see it, really, we see it immediately in the first elections and in following elections, but it’s very strong during the first elections. There’s a work by Kanchan Chandra on the long life of princes in Indian politics.

DE: One of the things which Ornit and I might want to do in the future is look at the new territorial additions. If you look at Sikkim, which is sovereign princely state, if you are a Sikkimese resident whose family is there before 1960-something, you don’t pay income tax. It’s written into the constitution. The idea that you can have separate clauses and privileges of certain states is a fairly old idea. It’s not exceptionalized to Kashmir and remains in 371. In those ways, it’s invisible, but it very much forms the infrastructure of certain kinds of politics.

Judicial Interpretation

RAJAGOPALAN: No, I agree with you, but they’re still a little bit different from some of the other live wires you point out in the book. The judiciary thing is just a live wire. Speaking of judiciary, this is a question to both of you, but maybe some of Rohit’s work speaks to it a little bit more. Normally, when we think of judicial interpretation, there’s this big question of what all should be included in judicial interpretation.

Should it only be the text of the constitution? Should it be constitution-making, which is all the debates and amendments and the drafts and things like that? Or it should be something more? Now, you kind of crack that idea open with your book, right? If it is not a constitutional moment and a founding moment with this final text which we take as given, now what gets included? Can we start including letters, especially letters like asking for referenda to remove elected legislators? It’s awesome. I love the idea, right?

Tomorrow, if there’s a constitutional amendment floated, can we give it legitimacy saying, “Hey, this is a 70-year-old idea, right?” Whether it’s linguistic states, whether it’s tribal movements, is this a way of now reopening what gets thought of as a constitutional document, or that’s not how you intend it at all?

DE: I would be very careful pushing that, but that has less to do with the nature of sources and more to do with the nature of judicial adjudication in India. I don’t think judges make the best historians in evaluating or sifting through evidence. 

RAJAGOPALAN: They don’t even make the best judges, Rohit. It’s hard for them to also be the best historians.

DE: And they retain strong contempt powers. There are two or three things that we’ve got back from practicing lawyers that you can take away from this. One is that, despite voices that you could call regressive or conservative, there is a broad acknowledgement that whatever is coming in India will be democratic and the state will be an agent in transforming economy and society. What is extremely clear is that the state is going to challenge caste order. Even defenders of caste privilege seem to acknowledge that. That is something I think that if you want to think about what we understand as basic fundamentals of the Indian constitution, I think it broadens that idea. 

The second is, Gautam Bhatia talked about it in a review of our work, where he said that we take democracy, secularism, these things as fundamentals, but it clearly shows that public participation is a fundamental part of Indian constitutional identity. There are a variety of both laws and regulations which either narrow or have a provision of participation that is not given enough robustness. There’s a way in which, in reference to, say, the development of the Central Vista in Delhi, courts could emphasize that it be followed more strictly. I want to firmly push against any kind of American originalist reading where you just find one more letter and say, “Well, this suits my current political moment, and we can just use it to back it up.”

RAJAGOPALAN: That’s exactly how we do jurisprudence in India, right? Suddenly, there are cases where they say, those drawings on the margins of the constitution that were added after the constitution was written. Yes, exactly. I wish everyone could see Rohit’s expression right now. There are people who make claims that Ramayana is in those margins, and Ayodhya and Ram Janmabhoomi has to be thought of from this perspective. It’s like, hang on a second, that came as artwork well after the constitution was adopted. I’m ridiculing our jurisprudence, but this is a genuine concern in the way that our judges interpret. Also, our lawyers play fast and lose.

DE: This is a conversation Tarun Khaitan and I have been having about trying to think about what, say, anti-colonial constitutionalism would look like. There’s a supporting judgment of Justice Fazl Ali in the A. K. Gopalan case. Fazl Ali says that—he’s not citing specific things—but he says that we have to understand the provisions of the constitution that this comes out through an anti-colonial movement that has challenged all of these things.

These are not mere technical words. You can’t interpret them simply by common law maxims. But he’s not saying, let’s read like a speech by Tilak. He’s like, “This is common sense, you’re working against it.” If there are two interpretations possible, and one would be keeping in mind the fact that it’s anti-colonial, you take that. That’s very different from saying that here is one particular thing I have found which now suits my view and I’m going to use it.

This requires, very thoughtful judges who are not just thoughtful in thinking, but also in how they communicate because the only way a judgment has legitimacy is the reasoning that it affords. As I think many of us agree, contemporary judicial reasoning often leaves out a lot to be desired.

RAJAGOPALAN: There is one other nice thread I found, which is suddenly, the Chief Justice of India starts giving lectures all over the place to make certain claims and to make the message heard. There is so much more in common between Justice Kania and his modern-day contemporaries, which is they say more in their lectures often than they say in their judgments. 

Future Projects

This was such a pleasure to read. It’s a fantastic book. I love that you crack everything open. I imagine many more research projects will come out of this. I really hope you guys write something on partition as the backdrop. I don’t think it changes fundamentally what you’re saying, but it’s a different prism or lens to look at everything that you’re looking at in terms of coalition-building and consensus-building and mobilization.

DE: I think, Shruti, you might like what we’re working on, which is on the First Amendment, where we didn’t get a question from you about business and economy, but that becomes central to who are the players who are engaging with the First Amendment.

RAJAGOPALAN: Oh, yes. This is actually great you brought the First Amendment up because I have always wondered, is the First Amendment part of constitution-making, or is it actually an amendment? Because it’s basically just written by the provisional parliament. When the Constituent Assembly becomes the provisional parliament, but before the first general election, and there’s fresh elections in a government.

To me, it very much feels like a continuation. It almost feels like a weasel way out. To give legitimacy to the constitution, you needed it to be adopted unanimously, but there were a lot of tensions. Now, we’ll do it during the amendment, and all those tensions just crack open during the amendment. It’s a much more complicated story. I’m very interested in it because of all the changes it makes to property rights and free speech and things like that. There’s much more to the First Amendment. 

SHANI: No, I wanted to say, originally, we had a section. We have a written section on the First Amendment that was originally in the manuscript, in the book. Very painfully, we took it out realizing that this is going to be a next thing for the coherence of the story we’re telling. It’s coming. We’re promising.

RAJAGOPALAN: No, that’s great. I’m glad you left it out because it’s fundamentally a different kind of constitution-making. When we think of judicial constitution-making, you reinterpret the constitution, whether it’s Golaknath, whether it’s Kesavananda, whether it’s modern-day cases about NJAC and all. I think there’s something very specific about the First Amendment.

I remember in Shankari Prasad, one of the first challenges to the First Amendment is, hang on a second, the procedure requires it’s a bicameral legislature. This is a unicameral legislature. On procedure alone, it should get defeated. There is something unique about the First Amendment versus every other amendment that comes after it. I think it’s worthwhile looking into it. I’m very glad you are the ones who are doing it.

SHANI: Really enjoyed it. Thank you!

DE: Thank you so much, Shruti. This [has been], as always, a fantastic experience talking to you.

RAJAGOPALAN: Likewise. Thank you for coming.