Legalizing the Revolution Sandipto Dasgupta Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Graduate School of Arts and Sciences COLUMBIA UNIVERSITY 2014 © 2014 Sandipto Dasgupta All Rights Reserved ABSTRACT Legalizing the Revolution Sandipto Dasgupta This dissertation reconstructs a theoretical framework for the Indian Constitution. It does so immanently, by focusing on the making of the Indian Constitution, taking into account both the demands of its specific historical conditions, and the formal constraints of drafting a constitution. The dissertation shows that in its historical context the task of the Indian constitution makers should be understood as creating a constitutional system that can mediate a transformation of the social condition. Performing this task required reinterpreting the established tenets of constitutionalism. The reinterpretation produces a distinct variation of constitutionalism that is termed transformational constitutionalism. Part I of the dissertation focuses on some of the central tenets of constitutional theory by examining the writings in which they first assumed their paradigmatic form. The concepts are situated in the historical context in which they were formulated to highlight the specific challenges they were a response to, and hence distinguishing them from the conceptual terrain in which the Indian Constitution was formulated. Part I also shows the essentially preservative nature of the main tenets of constitutional thought, and that the fully developed versions of its central concepts seek to preclude any possibility for major changes in social conditions. Part II sets out the historical developments that led to the material and ideational terrain on which the Indian Constitution was conceived. It first outlines the institutional and discursive structures of colonial rule to tease out the development of concepts that would serve as the point of reference for the constitution-makers. Part II then turns to the resistance to colonial rule by focusing on the ideas and politics of M.K. Gandhi to delineate the strengths and weaknesses of Congress’s claim to represent the Indian nation at the moment of independence, and outline the two different visions of what it meant to free oneself from colonial subjugation, and the different challenges for bringing those visions to fruition. Finally, Part II outlines the way in which the Indian constitutional vision was caught in an interdependent dynamic of break and continuity with its colonial past. After Part I and II have traced the conceptual coordinates of a modern constitution, and the specific historical condition in which the Indian constitution was conceived respectively, Part III focuses on the Indian Constituent Assembly Debates to show how the framers sought to respond to the concrete challenges facing them by creatively reinterpreting the precepts of modern constitutionalism itself. The dissertation shows that the Indian Constitution has to be understood as a totality containing three related strata – that of constitutional imagination, promises, and text – which exist in tension with each other. This tension constitutes the contradiction at the heart of the Indian Constitutional form. The dissertation concludes by following one such contradiction, between the strata of imagination and text as it developed during the most important constitutional conflict of the initial years on the question of compensation for acquisition of property. It also demonstrates how that conflict fundamentally shaped the nature of Indian constitutional practice. CONTENTS Acknowledgements vi Dedication xi Introduction 1 Theorizing the Indian Constitution 3 Transformational Constitutionalism 12 The Indian Constitution and the Postcolonial Predicament 15 Constitutional Interpretations and Constitutional Politics 18 The Indian Constitution and Constitutional Theory 22 Structure 26 Part I: Theory Introduction: Bourgeois Revolutions and Constitutions 31 Chapter 1: Limited Government 42 1.1 “They Are Born Equal Instead of Becoming So” 42 1.1.1 Social Consensus 42 1.1.2. Republican Crisis of Authority 45 1.2 The Problem of Democracy 49 1.2.1 A Federalist Answer to a Republican Demand 49 1.2.2 Distancing 53 1.2.3 Diffusion 55 1.3 The Problem of Property 58 i! ! 1.3.1 The Revolutionary Idea of Property and its Limits 58 1.3.2 The Constitution and its Reconception of Property: “Faculties for 63 Acquiring” 1.4 Law and Its Abstractions 67 Chapter 2: Popular Will 72 2.1 Popular Will as a Revolutionary Concept: Sieyès 72 2.1.1 Against All that Came Before it 72 2.1.2 The Bourgeois Subject and Representation 74 2.1.3 The Need for the Sovereign Will: How France was not England 77 2.1.4 The Dangers of the Sovereign Will: The Jacobin Challenge 84 2.1.5 To End the Revolution 87 2.2 Popular Will as a Defensive Concept: Carl Schmitt 89 2.2.1 Piercing the Veil of Constitutional Law: The Critique of Liberalism 89 2.2.2 The Nation as a Pre-Political Identity 92 2.2.3 Constitution as a Defense against Change 94 2.3 Popular Will as a Procedural Democratic Concept: Bruce Ackerman 98 Transformational Constitutionalism I 104 Part II: History Chapter 3: Colonial Rule 113 3.1 Colonial State and the Colonized Society 117 3.1.1. The Impossibility of Representation 117 3.1.2 Agency of the State and the Essence of Society 119 ii! ! 3.2.Property, Law, and the State 127 3.2.1 Revenue and State Formation 128 3.2.2 The Market, its Logic, and the Theory of Property 130 3.2.3 The State, its Necessities, and Property Rights 133 3.2.4 The Language of Law 139 3.3 Administration, Law, and Constitution 144 3.3.1 Colonial Constitutionalism 145 3.3.2 Coherence and Discretion 146 Chapter 4: Gandhi and the Anti-Colonial Movement 152 4.1 The Narrative 154 4.1.1 Myths 157 4.1.2. Inversions 159 4.2. The Promise 161 4.2.1 Non- Violence 161 4.2.2 Alternatives 164 4.2.3 Constitution 169 4.3 The Limitations 172 4.3.1 Contradictions 173 4.3.2 Slippages 177 Transformational Constitutionalism II 183 Part III: Praxis Introduction: Constitutionalism, Democracy, and Social Transformation 193 iii! ! Chapter 5: Formulation 208 5.1 Of Consensus and Conflict: Theorizing Indian Politics 211 5.1.1 Consensus and its Limits 211 5.1.2 The Problem of Hegemony I: Ethico-Political 214 5.1.3 The Problem of Hegemony II: Material 217 5.1.4 The Concept of Passive Revolution and the Critique of the Consensus 221 Model 5.1.5 The Terms of a Critique of the Constitution 224 5.2 Constitution Making and its Contingencies 232 5.2.1 “Dangers of insurrection and bloodshed” 232 5.2.2 Permissible Limits 237 5.2.3 Amendment 241 5.2.4: Executive Power and Civil Liberties 245 5.3 The Elites, their Divisions, and the Constitution 252 5.3.1 The Managerial Elite 256 5.3.2 The Industrial Capitalists 263 5.3.3 The Land Owning Elite 269 5.4 The Three Strata of a Transformational Constitution 275 5.4.1 Imagination 275 5.4.2 Promises 278 5.4.3 Text 283 Chapter 6: Contradiction 292 iv! ! 6.1 Compensation in Common Law 293 6.2 Compensation in the Constituent Assembly 300 6.3 “Purloined by Lawyers”: The Kameshwar Singh Case and the First Amendment 308 6.4 “Well-Established Rules of Interpretation”: The Bela Banerjee Case 316 6.5 From Constitutional Dispute to Constitutional Crisis: Indira Gandhi and the 328 Bank Nationalization Case Transformational Constitution III 335 Bibliography 346 v! ! ACKNOWLEDGEMENTS Over the course of writing this dissertation I have relied on the generosity and kindness of many people. Few of them will agree with what I have written, most of them will not. But all of them, in their own ways, helped to make it what it is. My advisers Jean Cohen and Partha Chatterjee deserve my gratitude for being patient and supportive of this dissertation through its challenging journey to completion. Jean Cohen has always been the most insightful reader and critic of my work, and a strong supporter whenever I needed her. She has taught me how to work out the implications of ideas, refine initial intuitions, and helped me discover possibilities inherent in my work better than I could myself. What I will cherish about my numerous discussions with her is her ability to always move beyond the abstractions of theoretical positions to address the real political debates at stake. Last and definitely not the least, she was responsible for introducing me to the possibilities of constitutional theory, right from my very first semester in Columbia when I took a class with her on the topic. Partha Chatterjee’s influence on this work is too numerous to recount. Right after graduating from law school, I audited one of his courses at the Centre for Studies in Social Sciences, Calcutta, that made me want to pursue political theory in the first place. To him goes the credit (or the blame) for turning a reluctant lawyer into a political theorist. From him I learnt that to tell a story about India, I have to draw from beyond the confines of narrow disciplinary boundaries. His wealth of knowledge and insight about Indian history and politics was a resource I critically depended on to construct my vi! ! arguments, and my conversations with him over the years introduced me to the complexities and distinctiveness of Indian politics, which has been a starting point for this project. I have been fortunate in being able to learn from Andrew Arato’s encyclopedic knowledge of constitutional history, and his passion for the subject was infectious. Many of the ideas in this dissertation were refined over several meetings with him at a small café next to the New School.