- Amlan Mishra*
The Indian process of becoming ‘democratic’ and giving universal franchise to all its citizens was one of the boldest in the history of electoral democracy. Informed by western scholarship and drawing from the western experience, scholars predicted that Indian democracy would not survive. Austin notes that the Constitution was criticized even inside the Constituent Assembly for being unIndian, and unreflective of Indian traditions.[1] In recent times, the Indian Constitution has been under attack for being ‘elite’ and not in consonance with ‘cultural values’.[2]A challenge to this criticism comes from Ornit Shani’s recent work ‘How India Became Democratic’[3], which argues that the Indian constitution was not debated merely in the ivory tower of the Constituent Assembly, but was also negotiated and debated by the people on the ground.
Ornit Shani is scholar of politics and modern history of India who theorises about Indian constitution-making and legal history. In this recent work she makes the case that the making of electoral rolls in anticipation of the first General Elections ‘democratised the political imagination’[4]. Her work breaks new ground in building the narrative of how the process of enfranchising the people also laid the groundwork for institutional structures like federalism, impartial election machinery and universal franchise.
The process of making the constitution has been well documented in histories about the pre-Independence constitutional developments, constitutional assembly debates etc.[5] More recently the survival of democracy of modern India has been subject to several books.[6] Shani’s works here adds to the discourse by narrating the motions of universal franchise which did the task of ‘embedding democracy’ at the birth of the Indian state-nation.[7]Relying on archival material of that period stored with the Election Commission, Shani tells the story of how Indians became voters before they became citizens. In the face of attempts to narrowly define citizenship for Indians based on religion[8], Shani’s work invites us to probe how the secular-democratic imagination took root in India during the process of electoral roll-making.
In this review I seek to detail three novel contributions of Shani’s work. Firstly, I examine her use of ‘narrative theory’ to theorise about important moments of Constitution making process. Secondly, I elaborate how her work proves that the constitutional provisions about elections were shaped from below, during the experience of electoral-roll-making. Thirdly, I examine fault lines of exclusion in the making of these electoral rolls and their impact on contemporary politics.
The Narrative of the electoral roll
Ornit Shani innovatively, employs ‘narrative theory’ of history to make sense of the discussion Indians were having about the elections. Narrative theory draws from the idea that the way humans come to terms with their existence is by narratives.[9]The book notes that the Constitutional Assembly Secretariat started issuing press-notes whereby it opened up correspondence with the people.[10]Through these detailed press notes the exact modality and process of electoral roll-making were put out in the press, in answer to people’s inquiries. These press notes were supervised by the Constitutional Advisor BN Rau himself. “In the same way an intimate address[in a novel] allows people to conjure up a uniquely vivid experience, the CAS’s correspondence enabled people to conjure up a world of universal adult franchise”.[11]The press notes kept the people in loop about ‘what happens next’ in the story and what changes were being made to the process from time to time.[12] It was also during this time that several princely states who had acceded to India, decided to grant ‘full responsible government’ and made press statements to that effect.[13]After the military takeover of Hyderabad, similar press reports were released announcing the setting up of ‘democratic institutions’.[14] Opinion pieces in newspapers were replete with discussion on these rolls.[15] One opinion piece called upon people to think about the ‘precious possession’ of ‘the vote’ they had got.[16]Similarly the process of ‘numbering of houses’ while enrolling people, made sure that ‘spatial visualisation’ of electoral democracy was kindled in people.[17]
The CAS was also flooded by people expressing concerns about its ways. People claimed disenfranchisement due to age-limit, argued for better electoral systems, and suggested deletion of columns of ‘caste’ and ‘religion’ in the rolls.[18] Shani thus argues that the narratives of these struggles and concerns of the common populace produced an ‘epic for the Indian Constitution’.[19]The constitutional guarantee of universal franchise then became a story where people saw themselves as protagonists and not as ‘subjects’ of another law than had been imposed on them.[20] Shani’s work is novel in that it engages with the narratives and the contexts in which these decisions were made. By moving beyond just a textual reading of the Constitutional provisions and Assembly debates, and engaging with the correspondence of ‘we the people’, Shani provides a more democratic lens from which we may view the ‘epic of constitution making’.
Vindication of this way of reading the constitution comes from the recent Sabarimala case[21] where J. Chandrachud reading of Article 17 as an anti-exclusion clause took into account these narratives of struggles to annihilate case. Marshalling Dalit experience of exclusion rooted in ideas of ’pollution and purity and writings from Jyotiba Phule to B.R. Ambedkar, the judgment concluded that at the heart of Article 17 was the anti-exclusion principle.[22]This crucial insight about narratives informing the making and adjudication of law was acknowledgedby J. Chandrachudin a keynote speech on ‘Law and storytelling’ thus[23]:
““If the dialogical role of the law is forsaken, the law becomes a diabolical instrument, which spells grave danger. The grave danger of interpreting the law without compassion is that you lose the individual narrative that the law is intended to sub-serve...How can a court deal with racial segregation without recounting the lived experiences of the people who were subjected to the travesty? How could the plight of manual scavengers be dealt with without recording the human experiences of social exclusion and boycott?””
Knowing that people were consciously writing to the CAS, to delete columns about caste and community in the electoral rolls, helps us understand our unique constitutional provisions about caste discrimination, exclusion and religious freedom.
Shaping the constitution from below
While documenting constitution making, several attempts have been made to find out the political theory which inspired constituent assembly members. There is little emphasis on the lived experiences of the people which informed the Constitution making process. Shani’s work attempts to show, that the experience of making electoral rolls informed the debates and decisions in the constituent assembly.
The roadblocks of local politics encountered led to the designing of an impartial election machinery in the form of a unified and independent Election Commission. Earlier the draft constitution provided the center and the states would have separate election commissions.[24] However the son of the soil movement was gaining ground in Assam and other states and the reluctance of several provinces to register ethnic and linguistic minorities living within their borders necessitated a change in the draft constitution.[25] A centralized election commission for the whole country was proposed by Ambedkar in the Assembly, which would be impartial and independent.[26]In his speech during the introduction of the amendment, Ambedkar alluded to correspondences received by the CAS, which contained tales of exclusion from franchise.[27] Thus the tales of the people from the ground, found a direct reflection in the debates and decisions at the high-tables of constitution making. A similar hiccup in this process was the question of who shall bear the costs for the electoral rolls. The provinces and the center for the longest time could not settle this dispute.[28] This experience led to a consensus that the new Election Commission would be fiscally independent, and not subject to arbitrary allocation of funds.
Shani’s work proves that the constitution was not just a borrowed text; it had responses to India’s unique problems of diversity. The UK and the US do not possess independent election machineries, but India’s conception of it was based on the experience we had while enfranchising the people. Seen thus an independent and impartial Election Commission, is a way of ensuring thatmajority interests may not dictate the basic political and social rights of minorities residing within its borders. This forms the basis of Ambedkar’s notion of constitutional morality[29] which wasfashioned in response to the unique diversity of India, where majorities are often communal majorities and where minorities may not have bargaining power in the lawmaking.[30]As Shani points out: ‘For Ambedkar…. achieving constitutional morality (achieved by the Independent EC) was a key for ensuring an adherence to the constitutional method.”[31]This idea of constitutional morality then becomes not just a legal-philosophical idea invoked first in the Constituent Assembly, and then used by courts[32]; it becomes an ideal which emanates from the lived experiences of the people.
Limits of inclusion
Contemporary Indian history is replete with examples where feelings of political disenfranchisement lead to insurgency and separatism.[33] In her book Shani invites us to probe if some of these debates of political exclusion and disenfranchisement can be traced back to the process of conferring universal franchise at the birth of India. During the process of enfranchisement some tribes in the North-East and the Andaman and Nicobar were kept out of the purview of franchise.[34] The sixth schedule of the Indian Constitution, provided for self-government and autonomous councils for the governance of these tribes.[35] However not all tribes wanted to be excluded.[36] Several tribes submitted memos, marched for days to testify before officials.[37] But the sub-committee on Fundamental Rights, reasoned that ‘unless administration is established over a sufficiently wide area, they should be centrally administered’.[38] This was accepted in the Constituent Assembly. Shani here relies on the work of other scholars to suggest, that this disenfranchisement of these tribes could be the reason for rising insurgency, non-representation of the North-East and the disconnect we see today.
When it comes to exclusion based on caste and religion, the question of ‘caste blind or not?’[39]confronts us. As we know, separate electorates were not included in the constitution. ‘Joint electorates’, with reservation of seats was the consensus reached after the Poona Pact[40].There was still ambiguity over reservation of seats for ethnic minorities when the rolls were being prepared.[41] The Constituent Assembly had also not figured out the exact way of reserving seats for depressed classes.[42]The earliest electoral form reflected this, and had columns for ‘caste’ and ‘religion’ to ascertain the identity of the candidates during elections. Later we see that there was a widespread feeling in the correspondence received by the CAS that there should not be division among ‘citizens’ on the basis of caste.[43] However some Scheduled Caste organisations wanted this distinguishing marker to remain, so that they could discover and fight against potential attempts at disenfranchisement.[44]Influenced by exhortations of neutrality and realizing the futility of separate columns in the election process the CAS decided to remove the separate columns.[45] Despite this or maybe because of this, Shani tell us, caste continues to be relevant in myriad ways in the contemporary electoral politics.[46]
The founders of modern India hoped that caste would not form the basis of any modern institution of government.[47] It seems paradoxical then that the very provisions of political reservations which were meant to provide a ‘fair deal to minorities’[48] have become centers of contentious political maneuvering in the name of caste.[49] The historical context provided by Shani, arms us with some background of how the seeds of identity politics were sown during the conception of India’s electoral democracy.
One cannot but agree with Ramachandra Guha, when he says in praise of this work, ‘All those interested in modern India, as well as the history of democratic practice generally, would profit from a close reading of this book.’ This book surely challenges and clarifies much of our understanding of India’s post-colonial constitutional history.
*Amlan Mishra is a 2nd year student at National Law University, Jodhpur. He is interested in Constitutional Theory.
[1] Granville Austin, Indian Constitution, Cornerstone of a Nation 406-407(OUP paperback edn, 1999).
[2]Adithya Reddy, ‘Why Pranab Mukerjee’s Constitutional Patriotism is error ridden’ Swarajya magazine https://swarajyamag.com/politics/why-pranab-mukherjees-constitutional-patriotism-is-fault-ridden
[3]Ornit Shani, How India Became Democratic(2018).
[4]Shani, Id, At 85.
[5]Eg. MP Jain, Outlines of Indian Legal History and Constitutional History (2014); B Shiva Rao, Framing of the Indian Constitution ( LexisNexis, 2015).
[6]Eg. Ramachandra Guha, ‘India After Gandhi’(2008);See Eg.Yogendra Yadav, Alfred Stephens, Jaun J. Linz, ‘Crafting State Nations’(2011).
[7]Shani, supra,11.
[8]Yogendra Yadav ‘With the amended Citizenship Bill, BJP will do Jinnah proud’, The Print(Janurary 10, 2019) https://theprint.in/opinion/with-amended-citizenship-act-bjp-will-do-jinnah-proud/175662/
[9]Communitarian philosophers and historians have long argued that contrary to the belief of individualist traditions, an individual cannot exist as an unencumbered rational being , but exists encumbered by his narratives of the past See e.g. Alasdair Macintyre, After Virtue 201 (1981).
[10]Shani, supra, 108.
[11] Shani, supra, 88.
[12] Shani, supra, 94.
[13]Shani, supra, 102
[14]Shani, supra, 103.
[15] Shani, supra, 105.
[16] Shani, supra, 105.
[17] Shani, supra, 94.
[18] Shani, supra, 108.
[19] Shani, supra, 97.
[20] Shani, supra, 86.
[21]Indian Young Lawyers Assn. v. State of Kerala 2018 SCC OnLine SC 1690(Para 247-254)(J. Chnadrachud concurring).
[22]Id at Para 255.
[23] J. Chandrachud at IDIA Conference, The Livelaw( December 16, 2018) https://www.livelaw.in/if-the-dialogical-role-of-law-is-forsaken-law-becomes-a-diabolical-instrument-chandrachud-j-at-idia-conference/
[24] Shani, supra, 189.
[25] Shani, supra, 191.
[26] Shani, supra, 191.
[27] Shani, supra, 191.
[28] Shani, supra, 191.
[29]First invoked in the Constitutent Assembly on 4th November, 1948:Parliament of India, Constituent Assembly Debates (Proceedings) vol. VII Part II: November 4, 1948 http://parliamentofindia.nic.in/ls/debates/vol7p1b.htm.; For clarity see PratapBhanu Mehta, ‘What is Constitutional Morality?’ (2010) 615 Seminar 17. Mehta argues that one of the elements of constitutional morality is the suspicion of any claims (including that of the legislature) to singularly and uniquely represents the will of the people.
[30]Aravind Narain, What Would an Ambedkarite Jurisprudence Look like, 29 Nat'l L. Sch. India Rev. 1, 17 (2017).
[31]Shani, supra, 191.
[32]See e.g. Naz Foundation v. Govt. of NCT of Delhi, 2009 SCC OnLine Del 1762 : (2009) 111 DRJ.
[33]Ramachandra Guha, ‘Valley of Errors’, The Telegraph.(April 26, 2016) Available at
[34] Shani, supra, 223.
[35] Shani, supra, 212.
[36] Shani, supra,217.
[37] Shani, supra,217.
[38] Shani, supra, 223.
[39]For background about this debate See:Gautam Bhatia, ‘Reservations, Equality and the Constitution – I: Origins’, Indian Constituional Law and Philosophy Blog. Available at https://indconlawphil.wordpress.com/2014/01/19/reservations-equality-and-the-constitution-i-origins/
[40]Indian Constitution, 1950 art. 330
[41] Shani, supra, 238.
[42] Shani, supra, 238-239.
[43] Shani, supra, 235.
[44] Shani, supra, 242.
[45] Shani, supra, 239.
[46] Shani, supra, 244.
[47]Jawaharlal Nehru, The Discovery of India 257 (1946); See also B.R. Ambedkar, 'Caste in India', in ‘Caste and Democratic Politics in India’ 83-107(Ghanshyam Shah ed., 2002).
[48]Shani, supra, 244.
[49]See e.g. Surinder S. Jodhka, ‘Caste and Politics’ in Oxford Companion to Politics in India(Jayal and Mehta eds., 2011).