The 1947 singularity

The 1947 singularity

Context:

• In the debates on India’s contemporary history, the meaning and significance of 1947 and of the framing of the Constitution have always been contested.

Arguments contested:

• Did the Constitution mark a moment of discontinuity with the colonial past, and a desire to transform Indian political and social structures?
• Was it simply a transfer of political power and a change of rulers, leaving underlying institutional arrangements intact?

Constitution as an “incremental development” of what existed:

• Two-thirds of the Constitution replicates the 1935 Government of India Act.
• Key enablers of colonial executive dominance such as the ordinance-making power and Emergency powers are still carried over.
• The Constitution expressly endorsed existing colonial laws.
• The laws of sedition, blasphemy and criminal defamation, Section 377 of the Indian Penal Code, and far-reaching Emergency powers are based on similar logic: the colonial imperative of reducing citizens to subjects and placing their liberties at the mercy of centralised and unaccountable power.
• Central to this argument is the issue of suffrage (the right to vote in political elections).
• It is argued that in the thirty years before Independence, there had been a slow and incremental development of representative institutions in India.

Constitution as a “revolutionary” in the true sense:

• It has also been argued that the imagination and implementation of universal suffrage was not in any sense a “continuation”, or simply an “incremental development” of what existed before.
• Rather, it was revolutionary in the true sense of the word, a re-imagination of the social contract and the basic principles that underlay it.
• In at least four distinct ways, universal suffrage in independent India marked a decisive break from its colonial past.
• First, arithmetically: the franchise granted by the British regime in the 1919 and 1935 Government of India Acts was highly restricted, and at the highest (in 1935) no more than 10% of Indians could vote.
• Second, structurally: voting in British India took place under the regime of separate electorates, divided along class and economic lines.
• Third, the character of the electorate: voting entitlements were based on property and formal literacy-based qualifications, which reproduced existing social and economic hierarchies, and excluded the very people whose interests were most in need of “representation”.
• And fourth, voting was a gift of the colonial government, which could be granted or taken away at its will.
• Suffrage was a privilege accorded to a few Indians, and not a right that all Indians had to decide who would govern them.

Conclusion:

• In early 2017, in a very significant judgment involving the executive’s ordinance-making powers, the Supreme Court expressly departed from colonial precedents on the subject, and placed important limits upon the scope of presidential ordinances.
• Thus, the court has an opportunity to affirm the words of one of its greatest civil rights judges, Justice Vivian Bose, who recognised the deeply transformative character of the Constitution.