Ornit Shani is an Israeli academic- i.e. smart and hard working- who has written a deeply silly book titled 'how India became democratic'.
The correct answer to that question is 'India became democratic thanks to the Brits who started holding elections on a restricted franchise from 1920 onward. Britain gave Ceylon universal suffrage ten years later but couldn't do the same for India, as the INC demanded, because the minorities objected. The Brits then had to impose their own solution. This was done by a Franchise Commission which consulted with provincial committees and gathered information from various other sources including all other parties save the INC. It considered universal adult franchise as the ideal towards which to work but recommended a more limited extension to the franchise on the grounds of administrative feasibility and practical considerations. It suggested indirect representation for those excluded as a stop-gap measure but affirmed that direct elections was the ideal towards which the country would continue to evolve.
The report of the 1932 Franchise Commission makes this clear. I quote 'The Prime Minister further instructed the Committee to give full weight to the report of the Franchise sub-Committee of the Round Table Conference. That report stated that “ while it was generally held that adult suffrage was the goal which should ultimately be attained, it was agreed that the basis of the franchise could forthwith be broadened, and that a large increase was desirable.” The majority recommended “ the immediate increase of the electorate so as to enfranchise not less than ten per cent, of the population, and indeed a larger number,—but not more than 25 per cent, of the total population—if that should, on full investigation, be found practicable and desirable.” The sub-Committee further recommended that in addition to providing for this increase, consideration should be given to the introduction of “a scheme by which all adults not entitled to a direct vote would be grouped together in primary groups of about 20 or in some other suitable manner, for the election of one representative member from each group, who would be entitled to vote in provincial elections either in the same constituencies as the directly qualified voters or in separate constituencies to be formed for them.”
The Prime Minister added that '" His Majesty's Government attach special importance to the question of securing a more adequate enfranchisement of women than the existing system, which applies to women the same qualifications as to men, and has produced a women's electorate numbering less than one-twentieth of the total male electorate.” He also desired the Committee to " consider by what methods the representation of labour can most effectively be secured.” Finally, while stating that it was not the function of the Franchise Committee to attempt a settlement of the communal problem, he instructed the Committee to obtain information on a number of matters connected with the representation of the depressed classes, to which further reference will be made in the chapter of this report dealing with that question.
Champions of the 'depressed classes', regardless of party affiliation, were concerned that their own position as representative of their people be accepted. The fear was that they might be disintermediated by universal franchise such that the votes of the poorest were bought or bullied out of them. For the other Indian political parties, extending the franchise was less pressing an issue than the question of joint electorates. Jinnah, negotiating for the League, would concede this for a price but that price would have split Congress. Still, it should be kept in mind, that, after elections were held in 1937, any Province could have extended the franchise by a majority vote and Westminster would have signed off on it. Had there been no war, it is likely that some such initiatives would have arisen. After Independence, India like every other newly independent country which had elections did so under universal adult suffrage. Partition had ensured this outcome. There really is nothing more that can be said about the matter.
Anupama Roy disagrees. She writes
Through an examination of the bureaucratic processes of the preparation of the electoral roll, Shani seeks to establish two points, both of which are of significance to the way in which scholars have thought about citizenship in India. Shani argues that Indians became voters before they became citizens (p.5).
This is false. I became a citizen of India at the very moment of my birth. I didn't get to vote till 21 years later (the 1988 act reduced the age to 18 but I was 25 then). There was a distinction, under the Raj, between British subjects and British protected person corresponding to those from directly ruled Provinces and those from the Princely States. The notion of citizenship arises from the British Nationality Law of 1948. Its import was that allegiance to the Crown was no longer a condition for being a British subject. Between January and November 1949, Indians were classed as 'British subjects without citizenship'. After that they became Indian citizens but this changed nothing. Citizenship, as separate from the status of being a British subject or protected person, arose from Independence and subsequent legislation such that a distinction could be made between Indians and Pakistanis. Muslims who had fled to Pakistan were barred from the automatic right to citizenship even if they returned whereas non-Muslim refugees would gain Indian citizenship. This had nothing to do with voting. Thus, in Law, all Indians became citizens at the same time and this was before the vast majority of them got the vote.
Indeed, it was in the course of the preparation of the preliminary electoral rolls from November 1947, set in motion by the ‘the note’ sent from the Constituent Assembly Secretariat to the various provinces and states of India that the process of inserting ‘the people’ into the administrative structures of the state was initiated. Indeed, it was the quest for a ‘place in the roll’, argues Shani, which prepared the ground for ‘the conceptions and principles of democratic citizenship that were produced in the process of constitution making from above’ (p.7).
This is sheer bullshit. There was a bureaucratic exercise. Some states had a problem with putting 'foreigners' on the electoral rolls. It was pointed out to them that the proper way to proceed was to crack open the heads of those you want to ethnically cleanse. Also keep raping them till they run away. Otherwise just beat them if they turn up to vote for your enemy.
The legal position was clear. Indian independence meant all Indians, including those from Princely States, became citizens (though Muslims who had crossed the border were denied citizenship so as to permit the redistribution of their property to non-Muslim refugees from Pakistan) irrespective of their eligibility to vote. Had India held no elections whatsoever after Independence, this fact would have been unaltered.
One might say 'getting the vote helped establish the idea of citizenship in people's minds'. But this wasn't true at all. Citizenship as an idea was wholly independent of voting. Indians living in the UK voted in British elections but they remained Indian citizens unless they chose to renounce that nationality and take British citizenship. This was also true of Commonwealth citizens living in Britain whose countries did not hold elections. However, if their country permitted dual nationality then they could be both British citizens and citizens of their country of origin.
A second point that Shani makes is about the relationship between democracy and the political imagination of the people of India, arguing that it was the implementation of universal franchise that elicited ‘both a sense of Indianness and commitment to democratic nationhood…’ (p.2).
Hilarious! Indians thought they were Israelis or Americans from the great State of Indiana. Then some nice bureaucrats made them realize they weren't Israelis, or from Indiana, at all. They were Indians! Not the good sort with tomahawks and peace pipes. The useless sort with hartals and satyagraha. Sad.
The Indian 'political imagination' had already conceived of India as a nation irrespective of whether it chose to hold direct elections, indirect elections, or no elections of any type.
Moreover, she argues that it was in the contestations and the language of interaction that was produced at the ground level, in the process of making the roll, that political imagination itself was democratised (p.6).
Is Shani actually Sacha Baron Cohen in disguise? Surely, this is a leg pull? It is obvious that the 'political imagination' can have a notion of democracy even if only monarchies can be found all over the globe. Indeed, political imaginations have to be democratised before any democracy can get off the ground. First you have to imagine the political arrangement you want. Then you have to get a lot of others to share that vision. Then you have to get power and implement the thing.
Roy says
I will tease out some of the broad arguments which emerge in the book to show their complexity, but also how in each case there could be space for another argument, or an argument different from the one Shani makes.
1. Genealogy of the ‘people’:
The concept of the ‘people’ is central to the universalist imaginings of modernity.
No it isn't. Leftists may have gassed on about 'the people'. Rightists may have gassed on about the Volk. But the truly modern didn't bother. The thing was too fucking Nineteenth Century.
It is abstract but also historically specific and can be traced through many genealogies
by shitheads who teach worthless shite. Only one 'genealogy' matters- that accepted by the law. I may claim to be the mother of the Queen and say that the genealogy of this idea originates in the ravings of Dr. Vagina Dentata Choothopadhyaya. The Courts reject my claim. What some crazy Professor thinks is irrelevant. The Law defines maternity in a particular way. Any other type of genealogy is just hot air.
, in which it assumes diverse forms. If one were to trace a particular genealogy of the people, one has to
be Foucault level stupid and Eurocentric. There is no fucking genealogy of 'the people' in English or Sanskrit. There may be some such thing in some esoteric branch of Continental Marxism but Marxism has gone extinct. JNU, being a Central University, will soon turn into a RSS bastion. Nobody will be talking of genealogy there by the end of the decade.
work out its formation in specific historical contexts,
these cunts can't work out shit. They don't know their own historical context forget that of Continental Marxism or faux Marxism.
the meanings that are attributed to it,
by fantasists
and the manner in which it operationalises itself.
Coz stuff operationalizes itself all the time- right? Wrong. A scientist may 'operationalize' a particular theory to gain empirical evidence regarding the underlying structural causal model. But no model operationalizes itself anymore than people operationalize themselves.
In the postcolonial context in India, the people were constituted at a pan-Indian scale of anti-colonial struggles for self-determination,
no they weren't. They already existed. Nehru wasn't constituted by anybody except his Daddy and his Mummy. The same was true of everybody else. Few Indians were part of any 'anti-colonial' struggle. Some who loathed the thing were still part of the Constituent Assembly which decided to strip Muslims of affirmative action and restrict the thing to Hindu Dalits and Tribals.
but also in, and through specific sites where struggles took place against local power formations.
Commies talk that way. But Communism has disappeared almost everywhere except some campuses and Kerala where however Communist Ministers rail against 'love jihad'.
The people were also constituted as the repository of sovereign power when they gave themselves the constitution on 26 November 1949 — a Constitution that they had enacted (through the Constituent Assembly).
This changed nothing. Pakistan became a Republic a few years later while Sri Lanka waited till 1972 to become a democratic socialist republic- which is also when it started to turn to shit.
Shani knows that Israel, like India, had a Constituent Assembly. But it never got around to writing a constitution. This does not mean that Israelis get confused and think they themselves may be Guatemalan goats or that the true sovereign of Israel is the Dalai Lama.
That the people also held constituent power was stated emphatically in Article 395 of the Constitution, which repealed the Indian Independence Act, severed all relations with colonial authority, and rejected the chain of validation which required that the Indian Constitution be placed before the Crown-in-Parliament for validation.
In other words, India imitated Irish 'constitutional autochthony'. This didn't matter in the slightest.
The electoral domain was another space where the people acquired meaning and form — the people were constituted through a collective act of voting ‘simultaneously’ in a manifestation of unfettered popular sovereignty, achieved through the deferral of political authority, which is concentrated in the apparatus of the state.
Ceylon had had universal suffrage since 1931. So what? Nothing was constituted by this type of bollocks. Marxists should know that.
The meaning of the people communicated through these diverse forms is identified with a specific ‘action’, which when expressed, constitutes the people as a collective body — emblematic as well as physical and corporeal.
and given to incessant farting and burping and spitting. Pity the people did not constitute themselves as incorporeal fragrances.
Ornit Shani makes a significant argument
if by 'significant' you mean shitty then, sure.
about the way in which ‘universal’ franchise inserted the principle of equality in the electoral roll and consequently a democratic disposition (p.18) among the people who were responsible for preparing the roll.
Very true. Some fucking bureaucrats suddenly acquired a 'democratic disposition'. If their kids voted for them to stick their heads up their own arseholes, then that is exactly what they did- thinks nobody at all.
On the other hand, in the process of acquiring a ‘place on the roll’, adult franchise played a role in connecting the people to a popular democratic imagination (p.19).
But half of all voters didn't bother. This supposed 'popular democratic imagination' didn't actually achieve anything. Why? Because most Indians remained as poor as shit.
I was curious how the big connection between a bureaucratic process and democratic imagination could be made.
Bureaucrats do what they are told or, at the least, pretend to do what they are told. If they are required to imagine the country is very sweet and democratic and nice then they will pretend to do so in between boring the pants of everybody in the vicinity.
If one were to read the documents and communications among the administrators as accounts of how they managed to achieve the impossible task of registering Indians as voters,
The task was easy enough. If you can do a census- and India had been doing censuses since 1881- then you can register voters. The Brits had done all the spade work. Just by retaining the bureaucrats they had trained, India could continue to do what the Raj had been doing.
as a prelude to the next step of actually voting in an election (described by Sukumar Sen as ‘a massive act of faith’),
Very true. How do we know, when we vote in an election, that our cat might not be elected President which would piss off the dog like nobody's business? It takes a massive act of faith to vote in elections and expect some shitty politician, as opposed to our cat or dog, to get elected.
it could appear to be a problem of administering an election efficiently,
that's all it was
rather than making people feel equal, and make the leap to a horizontal camaraderie of equals.
why not make the people feel they were Kings or Wizards or Gods? That would be even cooler.
In chapter 3 on the electoral roll as a ‘serialised epic’, Shani suggests that preparation of the electoral roll on the basis of universal adult franchise became part of the ‘popular narrative’.
But it was too boring to hold anybody's interest for very long. True, India was very much bigger than Ceylon. But the people and institutions were similar.
This narrative played a role in connecting people to a popular democratic imagination, ‘referring to manner in which it became not merely a system of rules that were to be observed but also part of the normative world of people and the stories, individuals make of it themselves’ (p.86).
30 million voted in 1946- an important election because it paved the way to Partition- and 176 million were eligible to vote in 1951. About 45 percent bothered to do so. But this merely confirmed Congress's grip on power.
In the conclusion (p.253) Shani takes the argument further to say that through a process of consultation, the Constituent Assembly Secretariat engaged public officials, people and citizens association in the details of voter registration and citizenship, mentoring them into both the abstract principle and practices of electoral democracy.
Just as they had done in Sri Lanka. East Pakistan too had elections and the whole of Pakistan finally got around to having a General Election with the result that the country split in two. It simply isn't true that anything very magical happens if you have a General Election. Burma had plenty of Elections starting from 1947 but that didn't prevent the Army seizing power in 1962.
So much so, that ‘people and administrators began using the draft constitution to pursue their citizenship and voting rights, and they linked its abstract text to their everyday lives’ (p. 252-53).
No they didn't. Erections matter in daily life. Elections don't.
Most of the material Shani discusses concerns the humungous ask of enrolling the entire adult population,
Which the British trained bureaucracy was able to do quite easily because the task involved stuff like being able to read and write. Universal franchise would only have been difficult to implement if the Indian bureaucracy had consisted entirely of monkeys.
in which ‘awkward’ categories — the refugees, displaced persons and women presented challenges of different kinds.
Very true. They'd keep trying to vote by farting rather than by making a cross on a piece of paper. This was very challenging.
This took place in an absence of an electoral law on the modalities of elections,
Israel was in a worse position. Indeed, it was politically much less stable both then and now. Still, the Israelis don't get confused and think they may be goats or that the Dalai Lama is their Emperor.
without a precise legal-constitutional framework on citizenship,
where is Israel's constitution written down? Nowhere at all.
and the provinces were beset with specific problems pertaining to registration. In this literature it is difficult to find a corresponding ‘pervasive popular narrative’ on franchise, which according to Shani was of an order which ‘communicated substantially and therefore convincingly, India’s movement towards becoming a democracy’ (p.89). One would assume that such a narrative did exist, but a tangible and substantial expression of that is not present convincingly in what Shani calls the ‘serialised epic’.
There probably was some bumf distributed at that time. Politicians may have made speeches and District Commissioners might have sent memos to subordinates. But people were used to elections and parties were geared up to compete in them.
2. Chronosophy of ‘citizenship’:
Immanuel Wallerstein cautioned against a linear narrative of historical change, to argue that historical transformations do not take place sequentially in ascendant or descendant forms, but are uneven and undulating, punctuated by conscious decisions made along the way.
But Immanuel Wallerstein was himself the subject of a linear narrative of historical change. He aged and then he died. There was no unevenness and undulation involved. He didn't return to life on a part-time basis.
When Shani makes the point about Indians becoming voters before they became citizens, she is perhaps referring to the fact that the legal affirmation of citizenship happened only with the commencement of the Constitution.
But nationality, in English and International Law meant the same thing as citizenship. Hitler's Germany may have made a distinction between the two- but Hitler ate a bullet. The only difference I can think of is that citizenship is restricted to natural persons. Companies can have nationality but aren't citizens. This makes no difference to anything whatsoever.
While there was a legal vacuum on who were Indian citizens (there were in fact two periods of such vacuum between 1947 and 1949 and then again between 1949 and 1955, when the Citizenship Act of India was passed by the Parliament), it did not mean that questions of legal citizenship were not being addressed in ‘problem’ cases through instructions from the CAS.
So, there wasn't actually any legal vacuum. The big question was whether Muslims who had crossed the border in panic would be allowed back. The answer, in general, was no. A lot of Indian Citizenship law has to do with out keeping out Muslims. This is the reality the leftists won't recognize. If the Constitution or General Elections had magical powers, it was a magic with a pronounced anti-Muslim bias. Partition was a two way street. India that is Bharat was and is Hindustan with the emphasis on the Hindu. No fucking Foucauldian subject was created anywhere except in the shitty brain-pans of those condemned to teach worthless shite.
Indeed, the questions of legal citizenship were coming up and were being addressed primarily in the context of preparing the electoral roll,
Previously there had been a distinction between British subjects- from British India- and British protected persons- from the Princely states. Some former Princely states didn't want to put migrants from British India on their electoral rolls but they were not allowed this option. If they couldn't be bothered butchering those they didn't want to vote then they had only their own laziness to blame.
since only citizens could vote. Indeed, rather then a sequential development, one could perhaps see them as overlapping and simultaneous, taking shape through documentation practices of the state, and alongside the development of the institutions of the state and their functional differentiation. Indeed, over the years, (and controversially so) resolution of the contest over citizenship in the preparation of electoral roll has come within the purview of the ‘superintendence and control’ of elections function of the Election Commission of India (under Article 324).
This is Foucauldian shite. The idea is that Governments somehow produce or otherwise constitute a so called people. The thing is very sinister. How come there's all these French dudes in France? Obviously, the Government has created them probably so it can secretly watch them poop. What is even worse is that there's this country called India where there's a whole bunch of Indian dudes wandering around the place. How did that come about? Through careful archival research we can begin to trace the sinister manner in which Governmentality was constituted as the totalizing project of its own operationalization upon the site of the contested subject as object of some shite or other due to Neo-Liberalism is totes evil and the Post Office is actually a cover for a paedophile ring- not the good sort but a totally perverted sort in which instead of sodomizing infants they are given nice birthday gifts from their doting grannies. This is a travesty of proper bio-politics in which everybody is tortured by their own gimp in between dying of AIDS. Also the Government is watching you poop.
An important point that Shani seems to be making is that in the process of finding a place on the electoral roll, a political community organised on the principle of horizontal camaraderie of equals
which may apply to Israelis kibbutz dwellers in 1950. India had little camaraderie across gender and caste and regions. This was a country where there were still plenty of Princes receiving fat privy purses while the vast majority were undernourished and lacked even a mahout to piss on.
could now be ‘imagined’.
I can imagine an India where everybody is rich and changes gender every other week in between flying to nearby galaxies. What I can't imagine is anybody stupid enough to think that voters in the first Indian General Election suddenly turned into comrades because of some transcendental Foucaldian shite.
We may see
if we teach worthless shite to shitheads
the imagination of a community of equals marking the transcendental moment of independence, the emphatic rupture from the past, and the ‘triumphal’ democratic imaginary, which is a component of democratic citizenship.
No it isn't. It is a component of being a gushing school girl laying it on thick so as to secure a scholarship to study some worthless shite.
This imagination can, however, exist independent of the constitutional/legal frameworks of citizenship, as well as the statutory frameworks determining who can vote.
D'uh! That's how come there were suffragettes and, before that, the Chartists and so forth.
Indeed, the peculiarity of the electoral roll and the legal and conceptual association/dissociation of the two — voter and citizen — is evident in the contests over the electoral roll in Assam. In the National Register of Citizens being prepared in Assam,
done under direction of the Bench, not the ruling Party.
a citizen-resident of Assam is required to trace his/her lineage to the electoral roll of 1971 in Assam, and then buttress it with the legacy data going back to the 1951 NRC of the state.
The Bench forced the Government to keep its promise in this respect and thus enforced the law of the land. It also suo moto opened detention centers.
3. Constitutionalism, State Formation and ‘Anticipatory Citizens’:
The period 1947 to 1950 is replete with polyrhythms of the democratic imaginary,
Just like the period from 1950 to the present day. There was nothing special happening at the time apart from Patel and Menon's deft footwork corralling the Princes and generally beefing up the administration.
one of which Shani writes about, i.e., the preparation of the electoral roll.
Which was actually easier than preparing the 1946 roll because the administration was more robust and, apart from the refugee problem (which was small relative to the total population) the thing was conceptually simpler.
The framing of the Constitution was another rhythm of democracy being produced at the time.
Jawaharlal was always doing kathak mujras due to all these cross rhythms. Hijras too would turn up but he'd shoo them away.
As a deliberative body which was entrusted with the task of making the higher order rules from which all future governments would draw their authority and legitimacy,
Fuck off! Winning the election gave you authority and legitimacy. After that you could amend the shit out of the Constitution which is what actually happened. Parliament is pretty much sovereign in India, unless it chooses not to be.
the debates in the Constituent Assembly enacted a space for the public, where questions concerning the future polity were debated and resolved.
Or debated and left unresolved or not debated at all coz the thing had been resolved at the time of the Nehru report or the 1935 Act or whatever.
Baxi sees this process as following the imperative of locating the legal sovereign amidst ‘prior [and continuing] histories of power and struggle’.
This is bullshit. The legal sovereign in India is the President. No difficulty arises in locating her. The Indian Army is not a paper tiger. It actually exists. So long as it obeys the President as Commander-in-Chief, 'prior and continuing histories of power and struggle' are irrelevant save in so far as they alter the composition of the Legislature and therefore the Executive. Histories of being a nuisance or sulking or talking bollocks are irrelevant. On the other hand, histories of bargaining and bribing may be highly germane. But that has nothing to do with sovereignty. It is purely transactional.
Kelsen and Schmitt and other such fuckwits may have gibbered to some good purpose for countries with historical 'dual sovereignty' but India didn't fall into that category. It is actually more unitary than the UK where Scotland and Northern Ireland have separate judicial systems and where Scottish independence poses no insurmountable Constitutional hurdle.
My point is that India has positive law and nothing else unless the ruling party wants to pretend a Kelsen type 'pure theory' obtains. But this is game theoretic not Grundnorm based- i.e. the 'dynamic aspect' of Law is underdetermined. There is a stochastic element. We can never tell in advance which Supreme Court decisions will or will not be implemented. Water-sharing between States seems outside the Court's ambit. As for 'detention centers' and deportation of Muslims- they contain few people and anyone who might actually be deported can just re-cross the border.
These struggles shaped the project of writing the Constitution,
Very true. Cow protection is a Directive Principle. That was a long struggle which hasn't ended yet.
the ‘specific modes of governance and production of juridical norms’,
had already occurred under the Brits. Panchayati Raj was an innovation but it came decades later.
and also the relationship between the constitution, law and the ongoing state formative practices (Baxi, 2008, 93).
But much the greater part of the Constitution arose from previous British legislation, especially the 1935 Act.
The process of enrolling electors broke free from the colonial practice of what Shani calls the ‘guided democracy’ disposition of the colonial bureaucracy (p.34) to instill a new set of bureaucratic attitude in the bureaucracy based on the ‘procedural equality of voting’.
There was no change in bureaucratic attitude. There had been Congress Ministries since 1937. Congress was committed to universal franchise. Burma, it is true, had a more Socialist Constitution but its democracy died after a number of general elections had failed to produce good governance.
While agreeing that the enrollment practices marked a rupture from the colonial past,
But that 'colonial past' featured elections from 1923 and Provincial Autonomy since 1935! There was no big rupture save in the Princely states.
is it possible to see the registration of electors as part of another tendency, which has to do with state formation?
Since the State already existed- and had done so for almost a hundred years- it is not possible to see any such thing.
Indeed, as a body framing the Constitution, the Constituent Assembly also alternated as the Legislature and the government, taking decisions, which were percolating down to officials at the local levels.
The Assembly was a Legislature. Its successor was Parliament which has the same power to amend or scrap or re-enact a Constitution.
The various flows of communication between the government functionaries, across ministries and departments, the Constituent Assembly and the Legislative Assembly, give an insight into the ‘innards’ of the state, the manner in which the separation of powers among institutions, their own understanding of these powers, the problem of drawing boundaries between and among institutions, and more generally the emergence of broad patterns of settling in of institutions and institutional practices, and the governmentalisation of the state was taking place through deliberations.
This is deeply boring stuff of no great importance. One may say that the creation of the Planning Commission represented a significant increase in power for the PMO which is why Mathai resigned as Finance Minister. But a different Prime Minister could have followed a different policy. Modi has scrapped the Planning Commission. Other PMs could have done the same.
The governmental regime of enrolling voters, for example, involved working with a new principle of registration (procedural equality)
which is exactly like the 'procedural equality' characteristic of the Post Office which delivers letters to the dustman and the Duke.
but at the same time it was also a task of sifting and sorting, of devising administrative and legal categories e.g., displaced persons, refugees, evacuees, abandoned women, classifying and categorising those occupying the liminal spaces of citizenship, to include them in different ways.
They were either included in the same way- i.e. put on the electoral roll- or they were excluded. No sinister 'bio-politics' was being practiced.
The excision of ‘descriptive’ women from the universal roll is one example.
Hijras got recognition as a third gender in 1994. Some had refused to vote as men previously. Apparently Bangladesh has recently given them this same concession. But it makes no difference at all.
The other example is how displaced persons
who faced more serious problems than getting on the electoral roll
continued to pose a problem for the Election Commission when the electoral roll was being finalised before the first general election, after the Representation of the People Acts came into existence. As Shani has mentioned, the Constituent Assembly had decided that the names of all displaced person be included in the voter’s list on the strength of their oral declaration. According to the narrative report of the Election Commission of India on the first general election, the states were instructed to enroll all such persons in the electoral rolls and a distinguishing mark be placed against their names, so that their citizenship status may be confirmed later after the Constitution came into force. In finalising the electoral roll, the marked voters presented and also experienced problems.
Very true. They experienced no problems in getting food or shelter or finding family members. Their big worry was where they could exercise their vote.
In Delhi, for example, which had a large number of displaced persons who resided in temporary shelters when the electoral rolls started being prepared, had by September 1951, when the rolls were published and publicised, shifted to colonies and townships set up for their rehabilitation. These voters were then not entitled to vote in the polling stations, which were set up in the localities in which they came to finally reside.
Boo-hoo! On the other hand, it is quite true that Congress thought these guys would vote for the newly created Jan Sangh.
The localities in which they were originally resident and had enrolled to vote, now formed a part of another constituency. The displaced persons experienced their enrollment as voters differently, therefore, and aspired for ‘natural constituencies’ based on shared interests, rather than constituencies following a territorial grid.
They were told to shut the fuck up or fuck off back to Pakistan.
On page 129 Shani does argue that ‘the preparation of the electoral roll was a state building project of the largest possible scale in terms of its population and territorial reach’.
What is the point in making such a stupid argument? People then in Delhi didn't give the matter much thought. It was a boring bureaucratic exercise which boring bureaucrats performed well enough. No doubt there was some gerrymandering because Patel's Home Ministry was determined to ensure a Congress victory. But nobody cared greatly even at that time. Congress was bound to win, one way or another.
This argument would then indicate a logic of state building in terms of reaching to its population spread over a definitive territory (embracing and encompassing functions of the modern state, as John Torpey would say)
The Raj had been compiling electoral rolls in Cities for decades before the 1923 election. The plain truth is that the Brits did the 'nation building' which is how come senior Govt. officials in India still have to speak English.
pointing towards an imperative different from that of a democratic imaginary.
There is only one imperative here. If you are being taught this shite, quit Skool. Get a proper job.
Read with the earlier argument on enrollment practices contributing towards making a democratic imaginary of a people, this argument presents a paradox, which inheres in all democracies.
There is no paradox. All organizations above a certain size have a bureaucracy. Universities have plenty of administrators who don't teach. Hospitals have administrators who don't know medicine. Democracies have bureaucracies same as Dictatorships. If your 'democratic imaginary' is causing you to babble garbage, understand that you will never have any political influence. You may as well vote for the Monster Raving Loony Party or demand that the Great Spaghetti Monster be appointed President.
Turning aside from Foucauldian biopolitics, does Ornit's book give jurisprudence a lifted horizon? No. Why? Because the Constitution does not change ; its interpretation by the Bench may do so but this can be reversed easily enough. The cretin Gautam Bhatia writes-
In 1964, a seven-judge bench of the Supreme Court was asked to decide whether certain forest rights granted by the ruler of a princely state to some of his subjects continued to exist even after the accession of the princely state to the Union of India.
The answer was obvious. They did if the State said they did. They didn't if the State said they didn't. India has Eminent Domain under item 42, list III of the seventh schedule. Some lawyer made a stupid argument and the Bench slapped him down. If it hadn't done so, Parliament would have amended the Constitution which, of course, Indira did. She also packed the Bench showing that Parliament alone is Sovereign- unless it chooses not to be so as to kick the can down the road into the Courts so as to avoid having to make a decision.
Could these people continue to enforce the old ruler’s commitments against a new sovereign?
No. D'uh!
A narrowly divided Court (split 4-3) held that they could not, agreeing with the contention of the State of Gujarat that the takeover of the princely states was “an Act of State” that automatically extinguished all subsisting rights, and that those rights remained extinguished unless specifically recognised by the new ruler.
This was always obvious.
To decide this question, however, the Court had to first answer another question: what was the nature of the transfer of power from the princely rulers to the newly-birthed Union of India?
This is false. Judges are only required to address questions of Law. But the Law has no elaborate theory of Power or its transfer. The Constitution makes it clear that there is no 'dual sovereignty' in India. The State is the State is the State. There is no other legal source of power.
In his concurring opinion, Justice Shah characterised it thus:
“… [the] promulgation of the Constitution did not result in transfer of sovereignty from the Dominion of India to the Union.
There was no 'conveyancing' and thus all prior rights and entitlements were not binding on the Union. The Indian constitution embraces 'autochthony' on the Irish pattern.
It was merely change in the form of Government. By the Constitution, the authority of the British Crown over the Dominion was extinguished, and the sovereignty which was till then rooted in the Crown was since the Constitution came into force derived from the people of India. It is true that whatever vestige of authority which the British Crown had over the Dominion of India, since the Indian Independence Act was thereby extinguished, but there was no cession, conquest occupation or transfer of territory. The new governmental set up was the final step in the process of evolution towards self-government. The fact that it did not owe its authority to an outside agency but was taken by the representatives of the people made no difference in its true character. The continuance of the governmental machinery and of the laws of the Dominion, give a lie to any theory of transmission of sovereignty or of the extinction of the sovereignty of the Dominion, and from its ashes, the springing up of another sovereign.”
Just say 'constitutional autochthony' and be done with it. But it is merely a legal fiction. The Bench is concerned with Law not Reality.
Ornit, sadly, is concerned with neither. She did some boring archival work and published a stupid book which, sadly, is better than any Indian academic can produce.
Ornit Shani’s 'How India Became Democratic: Citizenship And The Making Of The Universal Franchise' tells the fascinating story of independent India’s first general election
If by 'fascinating' you mean 'as boring as shit', then- sure. Why not?
The respondents relied upon the judgment of Justice Vivian Bose in Virendra vs State of UP. Justice Bose had held that Independence had been a transformative moment, ushering in a new legal order where the reign of arbitrariness and despotic power was replaced by the rule of law. Consequently, the “Act of State” doctrine – which placed certain actions of the State beyond the pale of the legal system – simply had no application in the post-Constitutional era.
Gautam is lying. The writ was allowed because Parliament had not passed relevant legislation yet nor had it taken control of the land by due process of law. The judgment reads ' It was not denied that if the present action of the State cannot be defended as an act of State it cannot be saved under any provision of law. Whether the State would have the right to set aside these grants in the ordinary Courts of the land, or whether it can deprive the petitioners of these properties by legislative process, is a matter on which we express no opinion. It is enough to say that its present action cannot be defended. Article 31(1) of the Constitution is attracted as also article 19(f). The petitioners are accordingly entitled to a writ under article 32(2). A writ will accordingly issue restraining the State of Uttar Pradesh from giving effect to the orders complained of and directing it to restore possession to the petitioners if possession has been taken, The petitioners will be paid their costs by the State of Uttar Pradesh.'
Thus 'Act of State' must still be observant of due process of Law. Trespass in time of peace is still trespass even if done by employees of the State.
Justice Shah disagreed:
“These assumptions are not supported by history or by constitutional theory. There is no warrant for holding at the stroke of mid-night of the 25th January, 1950, all our pre- existing political institutions ceased to exist, and in the next moment arose a new set of institutions completely unrelated to the past. The Constituent Assembly which gave form to the Constitution functioned for several years under the old regime, and set up the constitutional machinery on the foundations of the earlier political set up. It did not seek to destroy the past institutions: it raised an edifice on what existed before. The Constituent Assembly molded no new sovereignty: it merely gave shape to the aspirations of the people, by destroying foreign control
which had ceased in 1947.
and evolving a completely democratic form of government as a republic. The process was not one of destruction, but of evolution. For reasons already stated it is impossible to hold that what were mere claims to property till the 25th of January, 1950, could be regarded as enforceable against any one. Till the Dominion of India recognised the right, expressly or by implication there was no right to property which the Courts in India could enforce.”
This is bad law. The right exists till extinguished by legislation and due process. In this case, there was no right. The Prince had made a gift of forest access of what was his own. But it ceased to be his own. He had not passed a law or parted with an entitlement for consideration. He had merely given a gift of usage of what was his. But, it was no longer his to give. The new owner was free to continue the gift or to rescind it. I may allow you to pluck fruits from my orchard for free. Then my creditors seize my property. They are perfectly entitled to prevent you from plucking fruit from what now belongs to them.
In our constitutional history, for the most part, Justice Shah’s views have carried the day.
Only if the Bench decides the 'facts of the case' point to something being a gift which creates no legally enforceable right. Bhatia pretends that the Bench was saying 'State can do what it likes'. This simply isn't true. When Judges make a decision on a question of Law, stare decisis only arises if the facts of the case correspond to those in the original case. Suppose, the Prince had withdrawn his gift. Was the matter justiciable? No. That closes the matter.
The argument is a familiar one: from the 1919 Government of India Act, which first introduced representative government under the colonial regime, there had been incremental progress towards Independence. Waymarked by events such as the 1935 Government of India Act, it is argued that this incremental progress almost imperceptibly culminated in the grant of Independence. The ruler changed; partial suffrage became full suffrage; the legislative assembly replaced the Office of the Governor-General as the supreme law-making body; and all of this was a logical evolution from what came before. Fundamentally, nothing changed: the old laws remained, the old governing structures remained, the old forms of rule remained.
By the legal fiction of autochthony, they were deemed to spring from the immemorial soil of India.
This is not an academic debate. The question of how to accurately characterise the moment of constitutional creation has a direct impact upon modern-day constitutional interpretation.
Which is done by Judges. If we aren't Judges our views don't matter at all- more particularly if they are paranoid and hysterical- like Bhatia's
For example, it was on the basis of the evolutionary theory that the Bombay High Court, in Narasu Appa Mali, uncritically accepted the characterisation of “personal laws” by the colonial Courts;
Bhatia is lying. The Court upheld a 1946 law against bigamy for Hindus even though 'colonial Courts' had been perfectly happy with this aspect of Hindu personal law. However, it spared the bigamist jail time because his wife had consented to his taking a second bride.
it was on this unstated basis that the Supreme Court, in Kathi Kalu Oghad, used colonial penal laws such as the Identification of Prisoners Act to narrow the scope of Article 20(3) of the Constitution, reasoning that, after all, the framers could not have intended to frame so wide a guarantee against self-incrimination that the Identification of Prisoners Act would be made redundant;
This is utterly false. The court said 'our conclusion that in any case the accused does not become a "'witness against himself by giving his Specimen signatures or impressions of his fingers or Palms.' This is because we can't assume that compulsion was used. But if compulsion was used- i.e. the law was broken by the police, then any conviction would be unsafe because what would prevent lawless police officers from fabricating evidence?
Bhatia imposes his own paranoid theory by relying on things 'unstated' in Judgments. We are entitled to repay him in his own coin. Bhatia eats dog shit. This may be unstated in his writings but it is there all the same.
and, until a long-overdue course-correction in Krishna Kumar, it was by invoking the Governor-General’s near-absolute powers of Ordinance-making in the pre-Constitutional era that the Supreme Court granted an almost unchecked discretionary power to the Executive to issue ordinances under the Constitution.
This is false and foolish. The impugned Ordinances had not been laid before the Legislature within the specified time as required by law. Their reissue was a fraud on the Constitution. It is settled law that where you have a sitting Legislature, neither the President nor the Governor has any separate law making power. But this does not pose any problem for Ordinances issued by the ruling party if it enjoys a majority in the Legislature. It is absolutely false that, in peace time or times when no internal Emergency has been declared, the Bench has ever held the President or the Governor to have 'unchecked discretionary power'. Bhatia's paranoia has got the better of him. He sees 'course corrections' where none exist and thinks that a 1946 Act passed by mainly Hindu legislators represented 'Colonial era' Hindu personal law.
The upholding of colonial laws, the endorsement of the continuity of colonial practices,
but the doctrine of autochthony does not recognize any foreign source of law.
and the restrictive interpretation of Part III of the Constitution –
as opposed to a permissive interpretation which would allow Bhatia to invade your house eagerly seeking dog poop to devour.
these three staple features of our constitutional jurisprudence are all founded upon the unarticulated premise that the Constitution represents a moment of continuity (or, at best, “evolution”), rather than transformation.
So, the Bench is perfectly sensible. Bhatia is not. He wants the Constitution to transform everybody into dogs so he can get plenty of dog poo to eat. This is unstated in all his writing which is why, according to his own epistemology, it is the gravamen of his every screed.
It is in this context that Ornit Shani’s How India Became Democratic is a work of great importance in thinking about the Indian constitutional tradition. As Suhrith and Anupama have demonstrated in their essays in this series (read here and here), in its granular and detailed elaboration of independent India’s first general election, How India Became Democratic challenges the simplistic claim that the grant of universal franchise was an easy or natural evolution from the representative institutions that existed under the colonial regime.
It challenges the truth in the same sense that I challenge Mike Tyson to a fist fight.
As Shani points out in her introduction:
“The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people.” (p. 5)
This is bullshit. People wanted the vote. They got the vote. That's what made democracy credible. Britain was deeply hierarchical and unequal when manhood suffrage was attained. America had slavery but that didn't prevent it holding elections.
How did this happen?
Some civil servants did boring shit.
Shani writes about the preparation of the first electoral roll, the strenuous efforts that were made on the ground, and geared towards inclusion rather than exclusion,
but such 'strenuous efforts' of inclusion were also made by the Census which had been running since the 1880's. Procedural equality is no biggie. The Post Office delivers letters to Dukes and dustmen.
and the commitment of bureaucrats and officials towards realising the goal of universal adult franchise.
Because that was what they were paid to do. We may equally speak of the commitment of Post Men to the goal of universal delivery of letters- even unto farthest Ultima Thule.
At a more abstract level, however, what comes through Shani’s account is that there were three significant ways
there was only one
in which universal adult franchise marked a transformation that was not simply a question of degree,
all adults got the right to vote. That's all that mattered.
but of the very nature of the political society. First, sheer numbers: under the colonial regime, the extent of representation never crossed 10 percent of the electorate.
Because the League objected. Ceylon had got universal adult franchise in 1931. Numbers don't matter provided a big population also has lots of Civil Servants. Indeed, there are economies of scope and scale involved.
From 10 percent to an aspiration of universality is not an “incremental evolution”
Yes it is. You don't have to have ten times as many election officials because economies of scale arise and, moreover, political parties are geared up to registering their voters and getting them to the booths on time.
— it is, more properly, a fundamental change.
Burma had plenty of elections in the Fifties. Fundamental change came when the Army took power. That change was for the worse.
Secondly, consistent with the colonial practice of viewing Indian society as an agglomeration of groups that had normative priority over the individual, under the 1919 and 1935 Acts, representative government was conducted through separate electorates.
Because of the League. Getting shot of Jinnah & Co was the precondition for both Independence and universal franchise.
This was repudiated in the Constitution, which envisioned a single electoral roll and universal adult suffrage —
Because the Muslims had been told to fuck off if they didn't like it in India. Sadly, many good people were forced out of the country. That harmed India.
thus emphasising the priority of the individual over the group.
Very true. Congress never did vote-bank politics. Perish the thought! The plain fact is that Muslims weren't ejected because they were bad individuals. They were good individuals. It was as a group that they were feared or even hated.
And thirdly, the colonial regime treated voting as a privilege, and threw up substantial barriers in order to ensure that only the “worthy” were able to vote.
Fuck off! The 'colonial regime' wanted a united India with universal franchise- which Sri Lanka accepted because of strong minority protection but which the Indian minorities refused.
These included property and educational requirements, and for women, these requirements were linked to the status of their husbands. Consistent with Nehru’s observation that any procedural barriers towards exercising the right to vote would amount to a negation of democracy itself, the Constitution removed these disqualifications, placing instead universal adult franchise at its heart.
The Ayatollahs in Iran let women vote. So what? If the women vote for the wrong candidate and he wins, the Basiji will beat him to death- if they have not already done so.
Therefore, in the size of the electorate, the nature of the electorate, and the character of the electorate, there was absolutely nothing “incremental” about what the Constitution did: it was a foundational and radical change.
Also made by Burma- which soon turned to shit. Even Sri Lanka suffered because the Bandarnaikes wakened the Army- fearing a Burgher coup- and thus opened the door to first a Trotskyite insurrection and then an ethnic Civil War. To be frank, it still isn't doing very well. Constitutions and Elections have no magical power to turn corrupt kleptocrats into excellent macroeconomists.
It is in this context that we can understand what Shani means when she writes that suffrage instituted procedural equality in a deeply hierarchical and unequal society.
No. The Law instituted procedural equality which is what gave potential voters a judicial remedy if officials denied their entitlement to registration.
We are therefore in a position to see that Justice Shah’s characterisation of the Constitution as creating only a “new governmental setup” and having nothing to do with a change of “sovereignty” is flawed.
The guy should have spoken of autochthony. But his point was sensible enough. No extraordinary new rights had been unwittingly created by the Constituent Assembly such that Bhatia type nutcases could appeal to the Bench to turn everybody into a dog so as to have more dog poo to devour.
It is flawed because it puts the cart before the horse: from the fact that colonial laws and legal structures survived into the post-Constitutional era, it is extrapolated that the framing of the Constitution was more a conservative moment than a transformative one.
But that's exactly what it was! Burma's constitution was more radical. India needed a conservative constitution which would reassure foreign investors and the princes and zamindars. That's why Nehru backed down when judges threatened to resign en masse if he packed the courts.
This, then, becomes a self-fulfilling prophecy in a case like Kathi Kalu Oghad, where the existence of colonial legal structures imperceptibly mutates into a justification for them.
Only in the sense that it imperceptibly mutated into the prediction that Gautam Bhatia would eat only dog shit.
The logic, however, works the other way: the character of the Constitutional moment should be judged on its own terms (as Shani does), and it should then be asked (as Justice Bose did) how, within the new democratic system, the continuing legal structures ought to be understood. Indeed, Justice Bose’s crucial insight in Virendra was precisely this: that a fundamental change in the constitutional structure (from autocracy to democratic institutions) must necessarily have an impact on constitutional rights (even though the content of the laws would remain the same).
Gautam's logic is that if he says dog turds are delicious chocolate bars that is 'transformative'. It also means that Gautam can dine cheaply of 'chocolate bars' which emerge from the anuses of dogs.
The plain fact is that rights are meaningless save if connected to effective remedies under a bond of law. If remedies don't change, rights don't change. Constitutional structure arises from the Constitution itself. It can't fundamentally (as opposed to actually) change unless Parliament amends the Constitution. Bhatia is incapable of making any sort of reasoned argument. He just gibbers meaningless shite.
The American legal scholar Akhil Amar provides a good example of this. He examines the First Amendment to the American Constitution, which guarantees “the freedom of speech.” Now, the freedom of speech, as it existed in English common law, was a very limited right in the late-eighteenth century, providing protection only against prior restraint.
All rights and remedies were limited by jurisdiction. The Common Law recognized specific locales which enjoyed 'Liberties'- e.g. the Inns of Court in London- though these may have originated in Canon Law in the pre-Reformation era. What is the English Common Law doctrine of 'free speech'? We don't know. Currently, it is treated as a 'residuary liberty'. But what protection does it actually provide? This is a question for the Supreme Court which, after all, was only set up a dozen or so years ago.
However, Amar points to the fact that freedom of speech in the British Parliament was virtually absolute,
because of Parliamentary privilege which, like Judicial privilege, is a specific Hohfeldian immunity. Bhatia, cretin that he is, thinks Judges can be sued for libel for things they say in Court!
and this was at least partly because according to British constitutional theory, sovereignty rested in Parliament.
A Hohfeldian immunity does not depend on sovereignty.
Amar then argues that the American revolution marked a fundamental shift in this understanding, and in the new American republic, sovereignty was deemed to vest in the people.
But because immunities are independent of sovereignty, Americans gained no extra privilege as a result.
From this, Amar concludes that when the First Amendment guaranteed “the freedom of speech”, the fact that sovereignty had shifted from Parliament to People indicated that the (absolute) free speech rights enjoyed by Parliament now vested in the people.
This is moonshine. The plain fact is that what a US senator says in the Senate can't make him subject to libel or other such charges. But two 1972 decisions clarified this immunity only extends to 'legislative activities'. By contrast, ordinary members of the public enjoy no such immunity. A legislator can describe me as a horrible gangster in Parliament and I can't sue him. But I can sue any private person who makes such a statement.
Amar will look a fool if the Bench reverses NYT v Sullivan. But that has to do with the press. Judicial and legislative activities will still be protected.
I do not here want to comment on the historical accuracy of Amar’s argument. The point, however, is this: a transformation in the underlying constitutional structure (including the form of government) will inevitably affect the overlying substantive legal regime, even though, at the surface, the text of the laws might remain the same.
Only if the provision of remedies changes substantively. We could give ourselves a fancy new constitution but if we are poor and weak, nothing on the ground will change.
Laws that had a certain meaning and content under an authoritarian regime must have a very different meaning under a democratic system
Nonsense! Rape remains rape. Murder remains murder. Treason remains treason. Only if the provision of remedies changes can we say that laws are now more meaningful or meaningless.
(and this, precisely, was the reasoning of the Court in Krishna Kumar, when it rejected the colonial understanding of the Ordinance-making power).
Nonsense! Governors, post 1937 had no unrestricted Ordinance-making power provided a Legislature was functioning. That's why the Brits could shuffle off responsibility for the Bengal Famine.
For this reason, Shani’s demonstration that universal franchise was a transformative structural change
it wasn't, which is why no fucking transformation occurred.
provides us with a powerful argument to think through – and indeed, rethink – many of the features of our constitutional jurisprudence that have become virtually sedimented by the passage of time.
For example, constitution is not letting Bhatia declare that Judges are actually bow-wows and that he himself is entitled to eat their shit because Indian Constitution has 'transformed' their turds into tasty chocolate treats.
Suhrith has written about the Rajbala judgment,
upholding educational qualifications for Panchayat elections. There was nothing novel or surprising about that judgment. It is bleeding obvious that we want to keep out the illiterate granny of the local gangster.
but there are many others: for example, is it consistent with the framers’ commitment to prioritising the individual over the group through a common electoral roll for the Court to continue prioritising the group over the individual by excluding personal laws from constitutional scrutiny?
It may not be consistent but who wants to be fatwa'd? Judges have to live in the country after they retire.
Is it consistent with the conscious decision of the framers that women were to be treated as public citizens for the Court to continue to apply gendered stereotypes while deciding cases under Article 15(1)?
Yes, if the discrimination is done in a consistent matter. This depends on the facts of the case. I don't have the right to give birth to a baby. Even if I did, State is not obliged to provide me with a womb and a vagina.
And above all else, is it consistent with the Constitutional commitment to transform subjects into citizens
there is no such commitment. Subjects were free to get the fuck out of India and take citizenship elsewhere.
for regimes of legal impunity (under laws such as AFSPA and the UAPA) continue to flourish with the blessing of the Court?
But they aren't regimes of legal impunity at all. Wrongs done under these acts are justiciable. It is a different matter that Courts may decide that there is no prima facie case to answer. But that has to do with facts, not matters of law.
In his critique of Justice Shah’s judgment, KG Kannabiran notes that:
This interpretation ignores the social history of the period preceding the Constitution. It does not reckon with the struggles of the people who fought for freedom,
or the struggles of the far greater number of people employed in the Raj's police and Armed forces.
the repressive legal structures on whose altars people were sacrificed and their dreams shattered.
Very true. Viceroy was continually shattering dreams by waking up poor people by performing fellatio or cunnilingus upon them. Britain stole trillions of dollars worth of Indian jizz! They must be compelled to collectively jizz all over Bhatia till full restitution is made.
It ignores the aspirations of the people to build a better society for themselves.
by begging Amrika for PL480 food shipments
The rise of political democracy leading to liberation from foreign domination is not a mere matter of evolution. There can always be a break in the continuity, a severance from the past, without being preceded by violence and destruction. There cannot be, there should not be two social histories one for political theorising and another for legal theorising. The setting up of a Constituent Assembly and the passing of the Indian Independence Act, 1947 are a consequence, a culmination of the struggle for independence. It was the shared belief of a large section of the people that there was a political severance on August 15, 1947. and a severance constitutionally on 26 January 1950. If this aspect is lost sight of, the court disables itself from performing its assigned role under our Constitution.
In the opinion of a leftist lawyer from Andhra Pradesh where the Naxalite menace was contained by extra-judicial killing- not guys who gas on about human fucking rights.
The people who met in the Constituent Assembly were
mainly elected politicians
nor mere technicians who had gathered there to prepare a handbook for running the government.
Nonsense! Different departments of Government had there own 'handbooks'.
They had participated in the struggles and, short of holding elections, every effort had been made to give their gathering a representative character. The historical background leading to the formation of the Constituent Assembly has nor informed our understandingg or interpretation of the Constitution.
That is certainly true of Bhatia. But it did inform the understanding of those on the Bench.
With that understanding absent, the institutions under the Constitution were looked upon as a continuation of the colonial system of administration.
Which is what they were. These nutters may have pretended that Mahatma Gandhi was actually Lenin and Nehru was a Stalin or Mao. But everybody else ignored them.
In the continuing struggle
what fucking struggle? The Left fucked up and died everywhere except Kerala where, however, the CM says he wants to be the Deng Xiaoping of India.
to breathe life into Kannabiran’s constitutional philosophy,
you would actually need a Leftist majority in the Legislature. But voters won't elect useless tossers.
in the teeth of a judicial tradition that has too often treated the Constitution as an extension of what came before, Shani’s account of independent India’s first general election is invaluable:
So, it is worthless unless you are a crazy campus Leftist or a paranoid fantasist who devours dog poo.
it is a point of departure for all of us
virtue signalling tossers
to think more deeply about what 1947 meant,
it meant Communists would be slaughtered if they wagged their tail. As for the Muslims, they were welcome to run away.
and how the transformative character of that moment ought to map onto how we think about our Constitution, our citizenship, and our rights.
Who cares what or how nutters think? Judges matter but only if they don't do stupid shit. They can settle matters of law but not policy.
Turning to a less crazy commentator, a Madrasi lawyer named Suhrith Parthasarthy wrote-
Shani’s book blazes a trail because it shows us how citizenship was “made and contested on the ground”,
but Indians already know there was a freedom struggle. We don't need an Israeli to tell us about it.
how India’s prospective voters acted as engaged citizens
no. They acted as enraged subjects of a foreign monarch.
even before the Constitution came into force, and well before the country’s fundamental guarantees were set in stone.
Because many Indians wanted 'Azadi' before it was granted. The INC had been committed to universal franchise and full independence, not Dominion status, since 1930.
The creation of the suffrage, through a universal adult franchise, which we today tend to take for granted, was a consequence of radical thinking, of rewriting — as Shani says — “the bureaucratic colonial imagination.”
Nonsense! Ceylon got it in 1931. India could have too but the League objected. Some Princely States- e.g. Rajkot- gave universal suffrage as early as 1923
While some of the institutions that make the present-day democracy in India have their antecedents in colonial rule,
Almost all do- save panchayat Raj and so forth.
the universal adult franchise isn’t a consequence of any such legacy.
Only because the Muslim League was being obstreperous.
It is a product rather of a uniquely Indian exercise,
though every other country which became a Republic went down the same path- or tried to. How the fuck can something so ubiquitous be 'unique' to a particular country?
driven from the ground by Indians of generally humble backgrounds.
Nehru was from very humble background- right?
“Fundamentally, the concept of an electoral roll that would bind all adults together as equal individuals was anathema to colonial administrators,” writes Shani.
Fuck off! Colonial administrators provided it to Ceylon in 1931. India could have received it at the same time.
As a result, “they designed voter lists and registrations forms that divided the electorate into at least three types of constituencies: general, European and Mohammadan.”
Because that's what the League wanted. It wasn't till Jinnah & Co went their own way that Hindu India could get what it wanted. Incidentally, Shani seems to forget reserved seats for Dalits which we still have.
And, what’s more, the electorate contained various other qualifications, such as ‘Husband pays income tax, literacy’; and included a ‘special provision regarding names of women’. The very idea of expanding the franchise to women, Shani shows us, was a concept that proved especially difficult for colonial bureaucrats to grasp.
Nonsense! Some women had been voting in British India since 1919.
The notion that India’s democracy would be secured on the basis of a universal franchise, which was agreed on at the very beginning of the Constituent Assembly’s debates in April 1947,
It was agreed at Lahore in December 1929.
was, therefore, already a product of revolutionary thinking.
The thinking of the American or French revolution- sure. But this stuff was routine by the middle of the Twentieth Century.
But that this principle could be realised, in the midst of Partition, which led to the displacement of an estimated 18 million people, and the killing of approximately one million people,
but only in marginal parts of India. The vast majority of Hindus were wholly unaffected.
and in the midst of integrating the princely states into the Indian republic, was an achievement of astounding proportions.
Thought nobody at all.
Ultimately, the franchise helped expand the electorate to more than 173 million people, about 85 percent of whom had never voted in their lives, and a vast majority of whom, as Shani points out, were poor and illiterate.
But they could make a mark on a piece of paper if told how to do it.
As invigorating as the story on the bureaucratic excellence
which was a product of the Raj's civil service
that helped drive the universal franchise is, How India Became Democratic tells an even bigger tale. It busts the conventional understanding, for instance, that the Constitution was a gift to India from an enlightened few, from India’s famous nationalist leaders.
Burma got a more Lefty constitution. But it would be fair to say that members of the Assembly were enlightened and few in number. But a gift can be a white elephant.
It shows us that common Indian people were “already engaged with and demonstrated an understanding of the Constitution even before its enactment.”
Fuck off. Those who were engaged in this were uncommon. Most were lawyers.
The process of constitution making, Shani argues — and indeed shows us through letters, petitions and exchanges — was greatly informed by reaction on the ground.
Only in so far as members were already so informed.
The Constituent Assembly Secretariat (CAS), which was managed by a small group of bureaucrats, was tasked with the job of preparing the first draft electoral roll on the basis of universal adult franchise. In performing this exercise, the CAS, which worked under the guidance of the constitutional adviser, BN Rau,
who wrote Burma's more Socialist Constitution
was able to observe closely not only the direct consequences of its various actions,
because direct consequences are, by definition, directly observable. The thing is a tautology.
but also how the Constitution that would eventually be made was likely to tangibly affect people’s political rights and aspirations.
how the fuck could this be 'observed closely'? It could only be imagined or extrapolated
This process of preparing the electoral rolls using the draft constitutional provisions as its basis, Shani writes:
“not only turned the idea of the universal franchise into a reality,
just as a postman turns the idea of universal postage into a reality.
but also generated debates on the constitution outside the Constituent Assembly.
Which died down soon enough because the thing didn't matter very much.
Various civic organisations and administrators engaged with an array of constitutional provisions. In that context, the future constitutional vision as a whole was deliberated, interpreted, tested, and forged.”
Just like everywhere else. Perhaps there is an Israeli academic who writes, 'India's future dinner was deliberated, interpreted, tested and forged by Indian people. Previously, Viceroy would decide what everybody had for supper.'
Parthasarthy, later in his article tries to make a substantive point.
In Shyamdeo Prasad Singh v. Nawal Kishore Yadav (2000), a three-judge bench of the court, for instance, held that the “right to contest an election, a right to vote and a right to object to an ineligible person exercising right to vote are all rights and obligations created by statute.” To the court, therefore, the right to vote was merely a license granted by statute that could be taken away just as easily by a legislative act.
Does Parthasarthy think there should be a fundamental right which legislature can't abridge? But in that case we wouldn't have Parliamentary Democracy. A specific judgment from a Court would be needed to affirm the validity of any executive action just in case it abridged that fundamental right.
More recently, in Rajbala v. State of Haryana (2015), the court cited with approval its own decision in Javed & Others v. State of Haryana & Others, where it had held, rather absurdly, that:
“…right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right…”
If there is a fundamental right to contest elections does it extend to doing electioneering? Should every gangster be released from jail to afford him the opportunity to contest any election? It is Parthasarthy who holds an absurd view.
These distinctions that the court has drawn between fundamental rights and constitutional and statutory rights ignore the serious contests that went into the conception of the universal franchise.
There were no such 'serious contests' after the League was told to fuck off to Pakistan and the Commies were slaughtered if they wagged their tail.
They show us that the fundamental rights enshrined in Part III cannot be isolated from the electoral process.
Though that is precisely what has happened not just in India but everywhere.
As How India Became Democratic argues, the preparation of the rolls provided a “concrete opportunity for people and administrators across the country to use the Constitution…
Fuck off! Getting on the electoral roll or filling out a census form does not mean you are using the Constitution. It is just an administrative procedure of no great significance. It is a different matter if any sizable group is deliberately excluded. But the judicial remedy may be ineffective.
people discussed the Constitution and suggested amendments
very very few did. The thing is practically meaningless. India is very very fucking poor. The Law has no magical remedies to offer.
because they saw the Constitution as a means of resolving their disputes with the state and of securing their fundamental rights.” Therefore, any law that seeks to restrict a person’s right to vote, or a person’s right to contest an election ought to be tested not only on the provisions of Part XV, which is devoted to elections, but must also fulfill the basic conceptions of equality and liberty enshrined in the various different guarantees of Part III. The right to vote and the right to contest elections cannot be severed from each other. Indeed, they cannot be severed from the basic, foundational promises that the Constitution makes.
Yes they can. Indeed, the thing happens frequently across the globe.
The making of universal franchise, as Shani’s book shows us, was a product of a revolution,
No it wasn't. It was a product of evolution. The Brits had been talking of transferring power to a 'responsible' government from 1917 onward. By 1923 it was clear that 'responsible' meant 'representative' and that the franchise would be expanded and made universal provided the League did not object. Shani should have looked at what Olivier, as Sec. of State, was saying in Hansard. Maybe she did look but realized she was writing a book to flatter stupid Indians and so pretending to be as stupid as them was a smart career move. She had previously written a book on the post Godhra riots.
a movement that had at its base a belief in equal treatment, a belief in principles of inclusiveness. Ignoring this history will de-democratise the Republic, tarnishing a constitutional culture built through the most rigorous contestations on the ground.
No it won't. Indians don't give a shit for stupid lawyers or academics. Chief Minister Stalin isn't calling up this nutter for advise is he? On the other hand, he will pay good money to Prashant Kishore.
Shani has responded to her Indian commentators in Print-in
Parthasarathy presents superbly
uncritically
the main themes and arguments of the book about how the preparation of electoral rolls on the basis of universal franchise, ahead of the constitution, engendered struggles for citizenship, driven from below by Indians of modest means;
These were microscopic and not 'material' in any sense.
about the tremendous administrative efforts the making of the universal franchise for the largest electorate in democratic history entailed, and the rewriting of the bureaucratic imagination it necessitated; and how the preparation of rolls on the ground informed the process of Constitution making.
Nothing of the sort happened. Shani just made it up.
Parthasarathy rightly stresses the commitment to equality and to the right to vote that drove the making of universal adult franchise,
though the thing is a tautology. Universal adult franchise means an equal right to vote for all adults. Making the thing a reality meant being committed to it, or not being committed to it but getting paid to do so and thus doing it all the same.
not just as a constitutional vision, but also in practice, even before the constitution was finalised and came into force.
This just means that Patel was a good administrator. He made plans to do what would need to be done. That's just good management is all.
Parthasarathy focuses on a case where the government of Travancore refused to register on the electoral roll Tamilians who resided in the state but were not Travancore naturalised subjects of the state. In redressing the grievance of these Tamilians against the government of Travancore, the joint secretary of the Constituent Assembly, determined that the state had to register them as voters on the grounds that the state could not legislate or set qualifications that were inconsistent with the provisions of Part III [Fundamental Rights] of the draft constitution. It was inconsistent, in this instance, with the prohibition of discrimination on the basis of a place of birth. So, in this case, a fundamental right provision was inextricably interlinked with and protected by the draft (prospective) constitutional provision (289 B, and finally article 326), which entitled every citizen of India to be registered as a voter at elections to the legislator of the State.
More importantly Tamilians could settle in Kerala or Bombay or Delhi. If you don't like furriners kill them and chase them away. It aint enough to keep them off the electoral roll.
Parthasarathy discusses this case
an administrative decision, not a binding Court decision
to reflect critically on the Supreme Court’s decisions and reasoning on the status of the right to vote in recent law cases (In Shyamdeo Prasad Singh v. Nawal Kishore Yadav (2000), Rajbala v. State of Haryana, (2015), and in Javed & Others v. State of Haryana & Others). Strikingly, the legal status of the right to vote has been a subject of debate for some time.[1] The court has debated whether the right to vote is a fundamental right, constitutional right, or whether it is a right created by statute. Parthasarathy argues, on the basis of his analysis of the case of the Tamilians from Travancore, and the commitment to equality at large, which drove the making of the universal franchise, that it was ‘clear to the Constituent Assembly that the electoral process would in any event be subject to the larger guarantees in Part III’, and that ‘the fundamental rights enshrined in Part III cannot be isolated from the electoral process.’ I would like to make a few observations and some proposals to further strengthen Parthasarathy’s arguments.
This is foolish. Parthasarathy's argument is nonsense.
I will do so from both the perspective of the constitution makers’ intentions and their actions.
But we don't have an 'originalist' Bench. The 'basic structure' of the Constitution is whatever they current Bench decide it is.
I am not trained in the law, and therefore the proposals I offer below should be seen as based on my historical investigation and understanding of the actual making of the right to vote under universal franchise.
In which case it is wholly irrelevant. America has dual sovereignty, we don't and so 'originalism' or Clarence Thomas type opposition to 'due process' activism has no place in our Judicial hermeneutics.
In any case, Shani is simply ignorant of Indian history- or chooses to appear so for a careerist reason.
1. The Constituent Assembly Secretariat undertook the preparation of the draft electoral rolls on the basis of universal franchise, thus implementing the right to vote, from November 1947, to ensure the holding of ‘fresh general elections as early as possible after the new Constitution comes into force’. (p. 91). They did so on the basis of the Constituent Assembly’s decision, while discussing the Interim Report of the Advisory committee on the Subject of Fundamental Rights, to adopt the principle that every adult citizen shall have the right to vote.
A foregone conclusion since the INC- the ruling party- had been committed to this since 1930. Moreover the CAS was dependent on the Home Ministry under Patel.
2. Realising the idea of one women/man one vote – institutionalising equality for the purpose of voting – was fundamental to the building of a democratic edifice for India.
That's a tautology since 'democratic edifice' means one where there is universal adult suffrage.
The seriousness of purpose that was demonstrated in implementing this idea during the registration of India’s prospective voters, based on a deep commitment
would the outcome have been different if it had been a shallow commitment? Nope. The law is the law whether or not legislators were passionate or tepid.
to procedural equality and on a comprehensive inclusive drive – attending, for example, even to the voting rights of vagrants
vagrants? Fuck off! Plenty of the ancestors of some of the most successful Indians alive had to live in wretched conditions because of Partition. But, it is equally true that plenty of rich people in Mumbai had an ancestor who slept on the footpath.
living in huts erected illegally
or a house erected illegally.
was fully aligned with the fundamental constitutional vision of creating a democracy for India.
For Shani, everything is always 'fundamental' and involves 'deep commitment' and 'engagement' and so forth. When she goes to the toilet it is because she, at a very fundamental level, has a deep commitment and eagerness to engage with her constitutional democratic right to squeeze out a turd or two.
It is reasonable to argue that implementing the right to vote through the preparation of rolls was the first constitutional promise to be fulfilled by the new republic.
Nope- the Citizenship Act came first.
3. During the preparation of the rolls, people grew to conceive of their voting right as a basic guarantee of the constitution.
No they didn't. Most didn't know the constitution from a hole in the ground.
As I show in the book, a number of citizens’ organisations were established in order ‘“To safeguard the right of franchise as guaranteed by the new constitution”’ (p.64). Numerous others fought for a place on the roll to ensure their citizenship and voting rights.
They were a tiny number. Nobody remembers them.
4. Most importantly, perhaps, as a result of the implementation of the right to vote through the preparation of rolls, especially the experience of distinct forms of attempted disenfranchisement on the ground at the state level, constitution makers agreed towards the end of the constitutional debates on a ‘radical change’ (p. 185) in the election provisions. It aimed to ensure and fortify the autonomy and integrity of the election machinery, and to safeguard and give an explicit expression to the notion of universal franchise on the basis of a single joint electoral roll. The new article stipulated that the election machinery for all elections to parliament and to the legislatures of every state would be vested in a single independent central Election Commission at the centre. The implementation of the right to vote, a perennial and iterative process in a democracy, was removed from of the purview of the states, as it was originally set to be.
This is because, unlike the US, India has no dual sovereignty. But the Election Commission wasn't much cop till Chandrashekhar appointed T.N Sheshan.
In conclusion, constitution makers agreed in April 1947 to the suggestion of the Advisory Committee that the provisions on the right to vote ‘should find a place in some other part of the Constitution’, rather than in the part on Fundamental Rights, as was suggested by both the Fundamental Rights Sub-Committee and the Minorities Sub-Committee.
Patel was a smart man. But there was still a Viceroy back then.
I agree with Parthasarathy that this was a ‘judgment founded on form’.
It was founded on the fact that Jinnah had shown that minorities could hold the nation to ransom. Hindu India must either centralize or succumb to Muslim salami tactics.
The Advisory Committee unanimously supported the principle of adult franchise, free and fair elections and the management of these elections by a body that is independent of the government of the day. It is true that some of its members doubted whether franchise would ordinarily be part of fundamental rights, and whether dealing with franchise broadly was within the Committee’s jurisdiction. But in June 1949, on the basis of the actual implementation of the right to vote, constitution makers erected a constitutional fortress safeguarding the right to vote within the constitution.
But a paper fortress has no defensive power. India remained democratic because that's what suited the Hindu majority. Pakistan didn't. Burma didn't. Sri Lanka had a Civil War and now seems to have imploded because of the corruption and incompetence of its ruling family.
The Election Commission is the guarantor, in practice, of the right to vote.
No. It is a facilitator. The Bench is a guarantor- though it might prefer to sit idly by.
As some scholars have argued, the Indian constitution moved beyond the classic separation of powers in its creation of an independent Election Commission.
Those scholars have shit for brains. There is no guarantee a future PM might not put a crony in charge. Sheshan's legacy could be wiped out.
As an autonomous edifice within the structure of the separation of power, should it not be considered part of the constitution’s basic structure?
But Judges have to live in India. Their view of what is the 'basic structure' can't diverge too much from that of the Executive which pays and protects them.
Nehru’s insistence, when some doubts were raised about the universal franchise, that ‘It is one of the basic laws, according to me’[3], is a footnote to these observations, which I hope strengthen Parthasarathy’s arguments.
It would if Nehru was still respected. He isn't because Rahul is a fucking cretin. This causes us to look back on Nehru's record in office and realize that the apple doesn't fall far from the tree.
Response to Anupama Roy
Prof Roy addresses two broad themes of the book: the making of democratic citizenship and the fashioning of a democratic political imaginary, which I suggest were driven by the preparation of electoral rolls and the contestations for citizenship that emerged in this process. Roy presents my broad arguments about these themes, and raises some important questions about each of them, and about the relations between the two.
If by 'important question' you mean 'crazy query' then- sure, why not?
Roy asks ‘how the big connection between a bureaucratic process [the preparation of electoral rolls] and democratic imagination could be made’,
The answer is that the imagination fills out the background to its fantasy from what is already known to work. Thus, even when we imagine Heaven, we think of it as having a bureaucracy. There are numerous films about a guy being sent back to Earth from Heaven because some celestial clerk lost his paper-work.
and asks me to think about the idea that Indians became voters before they were citizens,
why not think about the idea that Anupama became a Professor before she learned to think?
and about the preparation of rolls as a state building process.
The question of the connection between the bureaucratic process and the democratic imagination is very important.
in an imaginary sense- sure.
Three main interlinked processes, which together constituted the actual process of implementing electoral democracy, and which produced engagement with shared democratic experiences among civil servants
did civil servants vote as to which of their own number should be Head Clerk? No. There was no fucking 'democratic experience' in the Indian Civil Service.
and between people and administrators, played a role in connecting the two.
Fuck off! Elected politicians spent a lot of time connecting with the people so as to get their votes. Civil servants tried to stay the fuck away from the people coz they kept asking them for roti, kapada or makan.
These were the rewriting of the colonial bureaucratic imaginations and habits on franchise and voting rights;
nothing of the sort occurred. Civil servants did what they were told or they were transferred somewhere horrible.
the way the universal franchise became a meaningful political order in which Indians would believe and to which they would become committed; and the ongoing numerous interactions between people and administrators about the preparation of the electoral rolls.
This simply does not tally with the experiences of our fathers and mothers- some of whom were Civil Servants. There was little 'interaction' and no fucking 'democratic imagination'.
The task of the administrators was to operationalise the notion of procedural equality for the purpose of electoral voting.
No. The notion was operationalized by legislators. Administration is not operationalization because it is itself an operation. How stupid does an Israeli academic have to be to consigned to writing stupid shit for Indian shitheads? Imagine the conversation Shani would have had with her PhD advisor. 'Hey Prof, I've got a dynamite idea for a thesis on American politics'. 'Fuck off. You are too stupid.' 'Okay, Prof. How about I research Japanese politics'. 'Fuck off. You are too stupid.' 'How about India?' 'That will be fine', says the Professor. 'Them guys wear sandals coz they are too stupid to even do up their shoe-laces. They'll think you are a friggin' genius.'
They had to imagine a joint list of all adults in the land
No. They actually had to make a list by asking adults their names. Had they been using their imagination, the electoral roll would have featured names like 'fat guy whom I imagine might be called Fatty McFat Fuckface'.
— women and men of all castes and classes — each carrying the same weight as equal voters.
Except for Fatty McFat Fuckface who carries twice the weight of Thinny McThinny Cunt'.
Designing instructions for the preparation of electoral rolls on that basis required a rewriting of the pre-existing bureaucratic colonial imagination on franchise and voting rights.
No. If you can do a census, you can do an electoral roll.
This process began over four months of consultations between and among administrators at all levels throughout the country, during which they were asked to envision how the lists should be best prepared, the difficulties they might encounter and how these could be overcome. This all-India administrative exercise in guided democratic political imagination
not imagination, administration. Shani is truly as stupid as shit. She will be popular with our libtards.
imbibed the notion of universal franchise and of procedural equality for the purpose of voting within the administrative machinery.
There was no voting 'within the administrative machinery'. There was voting to determine who sat in the legislature. Shani may simply be poor at English. What she has written suggests she thinks Indians elect their District Commissioner and Chief of Police and so forth.
This process deepened in the context of the intense struggles for citizenship and for a place on the roll that arose once the registration of voters began.
Very true. My Mum still recalls the vast throngs of people demanding the vote in 1950. They were wearing long skirts and wore bonnets and were White and called themselves suffragettes. The plain fact is that unlike England or America, there was never any big struggle to get the right to vote in India. There was a struggle to get the Brits to fuck off. After that there was a struggle to emigrate to somewhere still ruled by Whitey.
The commitment to procedural equality that was cultivated in the process of the preparation of the electoral rolls, and that went beyond a notion of efficiency in election management, was strikingly demonstrated when the collector of Bombay, for example, took in November 1948 proactive steps to ensure the voting rights of vagrants, servants and footpath dwellers.
Just as the Census administrators had done. Political parties in Bombay would, in any case, have registered their own voting blocks.
I suggest in the book, that it would not have sufficed for a democratic vision based on adult franchise to become merely embedded in the institution of electoral democracy.
That is because Shani likes making stupid suggestions.
The abstract principle of universal franchise also had to be embedded in the imagination of people.
No it didn't. It had to be embedded in their habitus. Imagining you voted does no good. Having the habit of going to the booth and actually casting your vote is needful.
They had to find meaning in it, to own it, and to find a place for themselves in it.
Political Parties gave them the motivation by promising to do all sorts of nice things for them once elected.
They had to make it personal. I argue that the storytelling about the preparation of rolls connected people to a popular democratic political imagination.
Because you are as stupid as shit. In politics, habitus matters. Imagination does not. You need to get people into the habit of voting for you. Imagining they will do so won't get you shit.
Stories about the preparation of rolls were published in governments’ press notes and in the press. There was not a single ‘pervasive popular narrative’. Numerous different stories, which represented varying concerns, and fragmented reporting from across the country appeared in the press, press notes and in the correspondences between people and administrators. These disparate stories appeared in relatively regular installments. They represented different concerns related to the core plot of the preparation of the electoral rolls. This contributed to the dynamic of a serialisation of the story of making universal franchise. It was a story of a monumental historical significance, grand in scope, and therefore like an epic tale of India becoming a democracy.
Only in Shani's imagination because she alone was stupid enough to study this boring shite. Now she is telling stupid lies to promote her worthless tome. Had she studied 'Golden showers in the Gupta Age' she would now be babbling about how getting pissed on by prostitutes is central to the conception of Hindutva.
Response to Gautam Bhatia
In his essay, Bhatia discusses the implications of the arguments in How India Became Democratic for contemporary constitutional interpretation. In doing so, he expands Parthasarathy’s analysis of the impact of the book’s themes on Indian constitutionalism. Bhatia addresses the question of ‘how to accurately characterise the moment of constitutional creation’. This question lies at the heart of various issues that came before the Supreme Court over the years, including decisions pertaining to fundamental rights.
But, it turned out the Bench wouldn't endorse the foolish ravings of nutters. So now 'this question lies' at the anus, not the heart, of the various issues that come before the Supreme Court.
The Court has debated whether the constitution represents a moment of continuity with past colonial constitutional frameworks and therefore a stage in a constitutional evolution, or whether it was a transformative moment. The former view has prevailed in India’s constitutional jurisprudence. This, Bhatia argues, ‘has a direct impact upon modern-day constitutional interpretation’, and clearly an adverse one, in his view.
But his view is worth shit. Basically, all he is saying is 'don't expect Judicial activism of a libtard sort.' But that tide had already turned. It was the Bench which insisted on the Nationality Register in Assam. It was the Bench that opened Detention centers and gave Janmabhoomi to the Hindus and which declared J&K had no 'vestige' of autonomy.
Bhatia shows how the view of the transfer of power as incremental and evolutionary enabled the court on various occasions to uphold colonial law,
Bhatia is wrong. India adopted constitutional autochthony on the Irish pattern.
endorse colonial practices
like jailing rapists or holding elections
and to maintain a restrictive interpretation on fundamental rights.
Rights are meaningless save in association with effective remedies. If the country is too poor to provide them, the Courts can't do shit.
Paradoxically, on the basis of a rather teleological understanding of the moment of the creation of India’s democracy as a stage in a process of evolution, the court sometimes reinstated autocratic forms of colonial rule.
But parliamentary democracy, like the Courts themselves, are a heritage of colonial rule.
Bhatia argues that the moment of constitution creation was transformative.
And we argue that anything he eats is transformed into dog turds.
And that the transformation in the constitutional structure ‘will inevitably affect the overlying substantive legal regime, even though, at the surface, the text of the laws might remain the same.’
Just as when Bhatia eats a samosa it is actually a dog turd whereas when I eat a samosa from the same vendor, it remains a tasty treat unconnected with the anus of any canine.
It is not, then, simply the letter of the law, but the meaning with which it is imbued in the particular context of that transformation. This is a fascinating argument.
Which can be used to prove that Bhatia eats only dog turds.
Bhatia suggests three ways in which ‘universal franchise marked a transformation that was not simply a question of degree, but of the very nature of the political society’: the leap in the size of the new electorate;
which had occurred in Europe over the course of the Nineteenth Century without any great change in the nature of political society. Kings and Emperors could still go to war with their cousins or seek to gobble up the territory of smaller states.
its nature – unlike under all the colonial constitutional frameworks the individual was prior to the group; and its character as universal.
This was a big feature of the Rule of Law of the Raj. If a Patel killed a Khan, only that Patel was caught and punished. There was no collective punishment of Patels- at least as British rule became more and more securely established. When Dhingra killed Wylie, Dhingra's father and brothers were not touched. True in contemporary India, the police sometimes jail the mother and brothers of a terrorist or gangster- but that is extra-judicial.
To add a footnote to Bhatia’s point about the scale of the transformation in the character of the electorate, the franchise provisions in the Government of India Act, 1935 (Sixth Schedule), contained so many qualifications for being a voter for a divided and restricted electorate that this was sub-divided into 12 parts spread over 51 pages.
But this was only because, at the Second Round Table Conference, Gandhi succeeded in uniting everybody- including non Brahmin Madrasis- against the INC.
Underlying his analysis, Bhatia picks up what to me is perhaps among the most, if not the most, revolutionary aspects of the moment of rupture from colonial rule and constitutional frameworks that the making of the universal franchise wrought (and which I already mentioned in my response to Roy): ‘The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people’
Shani is highlighting Bhatia's idiocy. A story about getting the vote becomes credible when you actually get the vote. Ceylon wasn't much less hierarchical than many parts of India. It got universal franchise in 1931 and held its first 'National' election in 1947. India was bigger and more bureaucratic so things took a bit longer there. Burma too had a general election in '47 and brought out a Constitution the next year. Pakistan did have universal franchise based Provincial elections in Punjab, NWF and East Bengal during the early Fifties.
I would like to attempt a small contribution to Bhatia’s arguments about the ways the making of the universal franchise marked a transformative constitutional moment. I will do so by thinking about the ‘constitution creation moment’ as a process. I will dwell here further on some of the points I made in more detail in my response to Parthasarathy.
The transformative nature of the making of the universal franchise also lay in the bold effort of undertaking it in anticipation of the drawing up of the constitution.
Burma and Ceylon had general elections in '47 before they had Constitutions. India was playing catch-up with its smaller neighbours. The thing may be called mimetic. It wasn't transformative at all. Some Leftists pretend that everything was wonderful back in the Fifties or Sixties or whatever. Then 'neo-liberalism' caused Hindus to start hating Muslim terrorists. The result was that Hitler rose from the dead and pretended to be a nice Gujarati gentleman named Modi.
The preparatory work started from November 1947. This was an extraordinary display of confidence in the fundamental principle of equality
which had already been shown in Burma and Ceylon where general elections had already been held
for the purpose of voting, and in the universality of the franchise, which marked the biggest rupture from colonial rule
Ceylon remained a dominion till the Seventies- after which it turned to shit (relatively speaking. It is still better off than most parts of India)
and its system of representation without democracy.
This stupid woman does not realize that White Colonies were democracies. Fuck she think was happening in Canada or Australia? India could have had the same thing but it was too disunited. Also Gandhi was a cretin.
Taking this leap resulted in a far more fundamental constitutional transformation.
in the 'democratic imaginary'- right? But imaginary shit don't exist.
As I suggested in discussing the status of the right to vote, the experience of preparation of the electoral rolls on the basis of universal franchise, particularly the realisation of attempted disenfranchisement on the ground must be overcome, drove a radical change in the constitutional provisions for elections and their management.
There were no such 'radical' as opposed to pragmatic changes- generally favourable to the ruling party.
The new provisions, which set up an independent central election commission,
which was often useless till Sheshan took over
was meant to supersede states rights over the universality of the franchise, and to create an institution that would protect citizens’ right to vote.
But not their right to live if they happened to be of the wrong religion and riots were occurring.
This roundtable and the questions raised by Bhatia suggest that a closer history of other constitutional provisions might throw more light on the question of ‘how to accurately characterise the moment of constitutional creation’.
Not if it is done by paranoid cretins. The Bench isn't listening to these nutters. They had their chance and messed up royally. Bhatia is particularly egregious in always lying about the import of any judgment he quotes. Shani has found an audience for her imbecility. Such naches she must be giving her parents! I'm kidding. Some Israelis are just born stupid. They can write shite about India because Indian intellectuals are even stupider and thus will hail them as great geniuses.
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