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Emergence of the Indian Constitution

The Indian Constitution has, as part of the history of nation making and the process of nation building, become the site of contestations of power. This article seeks to frame this discourse through a history of negotiations between communities seeking to create for themselves a "shared" constitution and resolve cultural fault lines through a vision of a cultural document that was to be the "Indian" Constitution. It attempts to comprehend the specificity of the constitutional design and the history of the idea of the text that is the Indian Constitution as an ideological contest between two visions, "constitution through nation" and "nation through constitution".

SPECIAL ARTICLE

Emergence of the Indian Constitution

Affirmative Action and Cultural Fault Lines

Vivek Prahladan

The Indian Constitution has, as part of the history of nation making and the process of nation building, become the site of contestations of power. This article seeks to frame this discourse through a history of negotiations between communities seeking to create for themselves a “shared” constitution and resolve cultural fault lines through a vision of a cultural document that was to be the “Indian” Constitution. It attempts to comprehend the specificity of the constitutional design and the history of the idea of the text that is the Indian Constitution as an ideological contest between two visions, “constitution through nation” and “nation through constitution”.

This paper is partly based on presentations made at the 25th Annual Conference of the British Association for South Asian Studies held at University of Southampton, UK, 11-13 April 2011 and the Fifth Annual Conference of the South Asian Studies Association held at Virginia Commonwealth University, 8-10 April 2011, Virginia, USA. I am grateful to Bhagwan Josh for his generosity as well as passion for independent thinking.

Vivek Prahladan (vivekprahladan@gmail.com) is a PhD scholar at the Centre for Historical Studies, Jawaharlal Nehru University, Delhi.

T
he landscape of postcolonial states in south Asia, Africa and South America are dotted with “tinderbox democracies” that are contradictorily complemented by the relatively stable Indian state. “There is little doubt that democracy in India has taken root”.1 Such has been the repetition of the electoral process and the evolution of state building and nation making enterprise that the Indian state has survived and has continued to navigate through fault lines that were and are cultural, regional, ethnic, linguistic, etc. The Indian Constitution, it may be argued, has been at the heart of this nation state building and has structured the relative stability at the core wherein aspirations (of castes and communities) emerging from within these fault lines merge successfully into constitutional discourses of affirmative action. However, interpretations of the text and form of the Indian Constitution have remained, in large part, disengaged from the idea of the text of this Constitution. A history of the idea of the Constitution is yet to be established as a part of the narratives of “discourse of Indian constitutionalism and politics”.2

First, narratives of modern Indian historiography appear to be predicated on a “primary contradiction”3 between two histories. On one hand, there are the histories of mass movements, which may be histories of the left, national movement, peasant or labour struggles, etc. The other side of this contradiction is the unexplored historiographical vacuum, the history of the Constitution. In the existing histories of national movements, constitutional developments have been viewed as “breathing spaces” from the point of view of upsurges of masses or periods when the Indian National Congress (INC) was supposed to be carrying on constructive work. The following statement summarises the prevailing historiographical consensus on constitutional politics as “simply filling the political vacuum between two Gandhian struggles”.4 However, one may argue that from a historical perspective, the end product of all mass movements was the formation and crystallisation of India’s new Constitution and the way its emergence dealt with the issues of caste and community. Periods of non-mass movements were equally significant when discourses of caste and community and not merely the INC were negotiating to create a constitutional consensus. The emplotment within narratives of the histories of politics in India, firstly, employ the idea of constitutional history being limited to a history of passive responses of the anticolonial discourse to British constitutional reforms. Secondly, “constitutional agitation”, the preferred term for constitutional politics, was carried on “within the four walls of law”5 which

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acted as breaks in the historical evolution of the Indian n ational movement and the triumph of the same. Thus, the history of India’s evolution as a constitutional republic starts, in these narratives, only with the 1946-47 constituent Assembly. Thus, it was not only constitutional politics that was opposed to mass movements but “communalism” too was contradictory to the discourse of Indian nationalism.

The history of the constitutional discourse is a history of n egotiations over a shared constitution. This framework of nego tiations remains hidden behind the dominant tendency of modern Indian historiography to focus on Hindu-Muslim riots and mobilisations and “communal” propaganda. Revisiting the foundational assumption in modern Indian historiography of the dialectic of secularism and communalism is one of the core implications of the framework of this thesis.6 Therefore, the n otions of caste, community and culture are not merely ideological superstructures but actual existential facts of living social conditions of south Asian societies. The “communalism” of the Muslim League and Congress Hindus, the Central Sikh League and the Hindu Mahasabha were discourses that were generated by the cultural fault lines between communities. This is the history of negotiations between bodies that were articulating discourses of identity, power, representation, affirmative action, reservation of seats, etc, and were seeking to embed the matrix of castes and communities within a single and a shared constitutional regime. The template of constitutional discourse invites reflection on the articulations of caste and community discourses by allowing these to be enmeshed into a single narrative trope which frames the emergence of a “shared” constitution as was being negotiated upon by Jinnah, the Muslim League, Ambedkar, Sikhs, and the Hindu Mahasabha.7 In these negotiations over constitution making, the INC was only one of the voices that were contesting within this colonial constitutional framework. The contemporary contest over the meaning of the Constitution and “the uneasy relationship between Constitution and democratic politics”8 in postcolonial discourses of power must be located within this history of negotiations over a “shared” Indian Constitution. Further, almost intuitively, pos tcolonial discourses of secularism anchor themselves to the n otion of a “secular” constitution which is considered to be “a charter of Indian unity”.9 The historiographical trope of the contradiction between communalism and secularism/nationalism carries over to the postcolonial contest over the idea of the constitution where “communalism remains a major threat to India’s Constitution based on secular and democratic principles”.10

The Constitution was drafted in December 1949 against the backdrop of the Partition. The latter was seen as the outcome of all that went wrong in Indian politics, i e, “communalism” which was “without any agitation or struggle”.11 On the other hand, Indian Independence and the Constitution were seen as the logical outcome of all that was right about Indian politics, i e, the idea of swaraj, the Gandhi-led national movement and its eminent “secular” values.

This paper views the constitutional discourse as a contest between two visions, “nation through constitution” and “constitution through nation” with the word “through” interchangeable with “after”. The former was articulated by the discourses of caste and community interests and the latter by the nationalist discourse of the INC. The colonial discourse of representation re-emerged as the postcolonial debate of affirmative action and was followed by the Gandhian and Nehruvian discourse wherein swaraj or purna (total) swaraj came first and everything else after. For instance, Ambedkar stated that “without the removal of the taint of untouchability Swaraj is a meaningless term”.12 M A Jinnah, on his participation in the proceedings of the second round table conference (RTC), stated that “we have come here, notwithstanding the opposition of those who stand for complete independence”.13 On the other hand, Gandhi, at the same RTC stated that “the agreed solution of the communal tangle can only be a crown of the Swaraj Constitution, not its foundation”.14 Swaraj, through mass movements, was a consistent and pre-eminent ideological commitment of the nationalist discourse.

The paper identifies four phases in this history of the constitutional discourse. Each phase represents a turn in the history of negotiations. (I) the phase of “comprehensive negotiations” –1916-32; (II) the phase where constitutional discourse was first challenged and then replaced by the discourse of cultural confrontation – 1935-46; (III) the Constituent Assembly and drafting of the Constitution – 1946-50; and (IV) the postcolonial debate over affirmative action. It will emphasise the contours of the first phase and briefly run through the other three.

‘Comprehensive Negotiations’: 1916-32

In 1916, the Congress and Muslim League entered into an agreement for the first and last time over the issue of separate electorates. The Lucknow Pact was based on the constitutional artefact of reservation of seats (for Muslims in the central legislature). It is important as an event of agreement inasmuch as it gives us an angle to explain the constitutional history of modern India. In 1916, the INC was still committed to the idea of “constitutional agitation”. The term “constitutional agitation” must be differentiated from that of the ideological paradigm of “nation through constitution” that posed itself as an alternative to the Congress’ “constitution through nation”. Congress was yet to come out of its foundational notion of “nascent nationalism” based on petitioning.15 The term “constitutional agitation” is a reasonable term to understand the pre-swaraj INC. It is intent and content was defined in terms of linear constitutionalism imagined within the construct of petition documents. Thus, a pact was inked with the Muslim League as their fellow constitutionalists. However, this political ecology of linear constitutionalism lost the initiative to the idea of Gandhian swaraj. It was with the advent of swaraj that one sees the fault line between the Congress’ vision of “constitution through nation”, that nationalism was a non-negotiable “intent”, with the vision of cultural politics of the Muslim League, Akalis (and later Ambedkar) articulating the intent of “nation through constitution”, and their explicit “content” of “culturalism”.

Beginning with the Lucknow Pact of 1916 between the Congress and the Muslim League and concluding with the unity conference at Allahabad in 1932, the nature of negotiations,

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ipso facto, define and distinguish this phase. All the negotiations in this phase involved large delegations (more than 100 in many cases) and were carried out on a “national” platform surrounded by massive public interest and media involvement. The various delegations, formal and informal, counted in its ranks the most important leaders of modern Indian history. Second, these “comprehensive negotiations” concluded with drafts, whether of agreements or disagreements. The draft of the 1932 unity conference was the last such involving constitutional negotiations between caste and community representatives. Third, the principle of reservation of seats was at the core of the contest over a shared constitution. Fourth, there were only two successful negotiations, one involved community and the other caste. The Lucknow Pact was the only successful agreement on the question of community and even this fell apart. It conceded the idea of reservation of seats for a community. The Poona Pact of 1932, involving Gandhi and Ambedkar, was the only other successful agreement and the basic principles of this agreement that of reservation of seats for castes, found its way into the constitution of independent India. This phase also saw the emergence of electoral politics and the idea of cultivating electorates to secure seats in councils and assemblies. Thus, this period saw the emergence of regional parties, caste organisations, and religious/cultural bodies besides the advent of the Gandhian mass movement.

Emergence of Mass Politics

The Lucknow Pact conceded the principle of reservation of seats in the central legislature with separate electorates for the Muslim community. “Tilak was an enthusiastic backer”16 of this agreement and negotiated with the Muslim League. Through reservation of seats over and above their proportion it “brought benefits to the Muslims in minority provinces”.17 It was also a way to bridge over the Surat split of 1907 which had virtually crippled the Congress and “for the first time since the Surat split, the moderates, under Chimanlal Setalvad, and the extremists, led by Tilak, came together”.18 Why did the same Muslim League with similar demands in 1928 come to be termed “communal” in modern Indian historiography? The Montagu-Chelmsford reforms confirmed the suspicion of nationalists (extremists) that “constitutional agitation” had failed. After the first war years, in the words of C Vijayaraghavachariar, there “entered a historic figure on the scene of Indian politics”.19 The momentum generated by Gandhi proved irresistible. This led to “the open cleavage between open politics and underground politics”.20 With the advent of Gandhi and mass movements, n ational politics came to be inhabited by those who were gripped by nationalism. Liberals left the Congress and so did Jinnah. A realist and a constitutionalist, Jinnah was critical of the emotional energies released by the Khilafat agitation and non-cooperation and could never be reconciled with the Congress through their pressure of mass politics.21

Re-emergence of the Constitutional Space

By the mid-1920s, the Punjab and Khilafat wrongs, which were the immediate inspirations for mass mobilisations, were no

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longer motivational. The momentum of mass movements was lost as Gandhi renounced non-cooperation following the Chauri Chaura episode and was subsequently jailed till 1924. By this time, as Anil Seal writes, “the Swaraj party was in the front seat, and Gandhi was back-pedalling, from gaol”.22 By 1925, Birkenhead threw the constitutional option back into Indian politics by “challenging Indians to produce a constitution”.23

First, this saw the return of the Swarajists, as C R Das and Motilal Nehru began re-engaging with the re-emerged constitutional space. However, the nature of this space had changed and ceased to be what is known as “constitutional agitation” and saw active negotiations between community and caste discourses to evolve an “Indian” constitution. Second, by this time, the Muslim League, which had earlier been overshadowed by the Khilafat agitation, retrieved its status as a Muslim counterpart of the Congress. In Punjab, Fazl-i-Hussain revived the Punjab Provincial Muslim League to work with the Muddiman Committee on constitutional reforms.24 In its 1924 session, the All India Muslim League, with Jinnah in attendance, resolved that in any constitutional dialogue, the form of government would be a federation with provincial autonomy and constitutionally guarded Muslim majority in Punjab, Bengal and the North-Western Frontier Province. Also, by 1925 Maulana M uhammad Ali had fallen out with Congress and publicly held “a fallen Muslim to be better than Mr Gandhi”.25 By 1931, Maulana Shaukat Ali too was seen opposing Gandhi at the s econd RTC. Third, parallel to this was the rise of the Hindu Mahasabha as “the wave of riots which spread in the early 1920s resulted in the relaunching of the Hindu Mahasabha”.26 However, the window for dialogue between the communities remained open. Paradoxically, it seems, the riots made a d ialogue necessary between representatives of the communities as no one community was able to dominate in “street strength” and both had the ability to retaliate. Pandit Malaviya insisted on the need “to approach Muslim leaders to devise means to settle disputes. In case riots occur we should settle matters in consultation with leaders of both communities.”27 Malaviya, along with Jinnah, had opposed Gandhi’s non-cooperation resolution in 1920. Lala Lajpat Rai, speaking at a rally in 1925 stated that “it is wrong to represent that Hindus are altogether opposed to any revision or reconsideration of the Lucknow Pact”.28

The process for the next instalment of constitutional reforms was on the cards and this led, first, to the “Delhi Muslim proposals” where reservation of seats in joint electorates could be e xplored as the basis for a compromise over separate electorates. The Muslim League decided to “frame a constitution for India on lines acceptable to all communities and all parties”.29 The INC accepted this principle of reservation of seats for Muslims in the central and provincial assemblies at its 42nd session in M adras. The Mahasabha also accepted the Delhi proposals. This momentum culminated with the All Parties National Convention (henceforward the convention) in 1928 and its outcome, the Nehru Report. As a response to the Simon Commission, the convention was called to explore a consensus through negotiations on the constitution. The negotiations could not lead to an agreement and the Nehru Report of 1928 was a document of disagreements. The idea of reservation of seats emerged as the core of the constitutional dispute. Why was it that on the issue of reservation of seats for Muslims in the central legislature, Punjab and Bengal, the convention, in its own words, “could not arrive at any agreement”?30 This can only be answered by reinterpreting the convention as a dialogue between communities. The key to the negotiations lay in the interventions of a body called the Central Sikh League based in Lyallpur. The a rticulations of this body may be understood in the context of the Singh Sabha movement and the evolution of the notion of the Sikh panth. The Akalis were the first regional party in the subcontinent. Jalal writes that “Punjabis of all religious denominations had conflicting opinions on the Nehru Report”.31 I would like to assert that the Sikhs under the Central Sikh League presented a formidable unity, though not unanimity. This was u nlike the Muslim League which was divided in Punjab over the Simon Commission and in Bengal where Fazlul Haq persisted with pushing for separate electorates.

The Communal Question

The first impact of the community discourse of the Sikhs at the national level was felt during the convention. Here, the Sikh League put forth its demand for 30% reservation of seats with the right to contest additional seats even though their proportion in Punjab according to the Census of 1921 was 11%. This demand was based on its understanding that in Punjab “the existence of more than one minority favours the reduction of majority in numbers into a minority in representation”.32 Motilal did not anticipate the Sikh insistence on reservation of seats as their minimum irreducible condition to any agreement. He wrote to Jinnah, “The strangest development that has taken place is that of all communities in India, the Sikhs are now thinking of having reservation for themselves in Punjab”.33 Thus, in an attempt to close the window on the “Hindu-Muslim” constitutional dispute over reservation of seats, yet another door was opened, that of reservation of seats for Sikhs who saw the Lucknow Pact as a mistake. Baba Kharak Singh “exhorted the Sikhs to throw the Nehru Report in the dustbin (as it was) another Lucknow Pact in which the interests of the Sikhs had been sacrificed”.34 The antagonism of the Sikh body towards the Congress sharpened in the aftermath of the Nehru Report and its secretary wrote to Motilal that “you and your party have adopted the bureaucratic tactics of divide and rule”.35 With the infusion of Sikh discourses of representation and reservation of seats the Hindu-Muslim question in Punjab “defied all attempts at a satisfactory adjustment”.36 The convention found it difficult even to establish the meaning of the word “minority” because in the negotiations, according to Motilal, “the word minority had sole reference to Muslim m inorities”.37 The convention then replaced the word minority with “small minorities” with the intention that “the word would be confined to Muslim minorities”.38

The Sikhs, however, remained unmoved by any of these attempts that would result in watering down their demand for reservations. Eventually, the Nehru Report did away altogether with the principle of reservation of seats (both for majorities and minorities) which held the promise of a compromise on separate electorates. Thus, community discourses were seeking “constitutional equilibrium” through reservation of seats. At the beginning of the convention, Motilal, optimistically wrote to “dear Jinnah” that in regard to Punjab and Bengal “there are already signs of a desire on the part of each community to reverse its position in regard to reservation”.39 Later in 1928, Shaukat Ali wrote to Gandhi that “in your presence Motilalji and myself differed so strongly over the reservation of Muslim seats question”.40 Under no circumstance were Sikhs and Muslims willing to accept the implications of the simple arithmetic of adult franchise in the central legislature or that of population proportion in minority provinces. Motilal Nehru also wrote to Jinnah of his suspicions of “even some leading Hindus of Bengal who are now pleading for reservation of seats to save themselves from the Muslim avalanche at polls”.41 By the end of 1928, the Nehru Report lapsed and the dialogue between communities came to an end with Jinnah’s 14-point agenda. Gandhi’s own assessment was that he “had no faith in the legislative solution of the communal question”.42 An outcome of the convention was that reservations became the necessary condition for an agreement on the “content” required to achieve any sort of critical mass for an agreement based on the “intent” of “nationalism”. This leads to the assertion that the contest between the two visions of “constitution through nation” and “nation through constitution” was also one between the centrality of the assertion of a “content” based nation state as was asserted by community (and later of caste) discourses and of “intent” driven nationalism of the INC.

For his part, Gandhi was waiting for a civil disobedience campaign and with Bardoli he got that chance once again after 1922. As Judith Brown states “Bardoli lifted Gandhi out of the depression”.43 On the back of the failure of the first RTC Nehru embarked upon the no-rent campaign. However, viceroy Irvin succeeded in bringing Gandhi to the negotiating table for provisional cooperation by securing Gandhi’s participation at the second RTC at London. Here Gandhi rejected any special safeguards for any community especially the “Depressed Classes” and put forth a strong claim of the Congress being the sole representative of the interests of all Indians. Gandhi found himself opposed by all minority representatives including Ambedkar. Within this phase of “comprehensive negotiations”, the second RTC marks a shift for three reasons. First, it inaugurated the entry of caste discourse into the constitutional dialogue at the national level that had until now been restricted only to communities and issues of caste ceased to remain the preserve of social reform. Second, it brought to a head the contest between two visions that had begun with the Lucknow Pact of 1916, that between the constitutional discourses of communities and castes affirming the notion of “nation through constitution” and the nationalist vision of “constitution through nation or Swaraj”. Third, the process of Gandhi having to reckon with the inescapable implications of the constitutional discourse had begun. By the time of the communal award Gandhi had proceeded to actively engage in this

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constitutional dialogue leading to the Poona Pact with Ambedkar in September 1932.

B S Moonje, the Hindu Mahasabha leader was present at this RTC along with Gandhi. The Mahasabha was, among other things, also actively involved in the constitutional discourse in terms of the constitutional implications for Hindus. During the second RTC, the Mahasabha was holding meetings in Delhi “to consider communal and constitutional issues”.44 Here the role of consensus making played by Malaviya cannot be understated. He represented the crucial link between the hard line Mahasabhaites who spoke in terms of military regeneration, the moderate Mahasabhaites and the Congress Hindus like himself and C Vijayaraghavachariar and Gandhi. The Mahasabha was sensitive to the idea that, for now, constitutional discourse came before that of swaraj. During the second RTC, Moonje in a letter wrote that “we Hindus are idealists and fools. We are so impatient for Swaraj that we do not bother to comprehend its responsibility”.45 Faced with opposition over the constitutional negotiations, Gandhi concluded that “the sinful wrangles” would continue to evade any resolution so long as there remained uncertainties in regard to “the fundamentals of the constitution”.46 T B Sapru, sympathetically noted, on this occasion, that he “witnessed the funeral of socalled Indian nationalism”.47 By the time of his return to India and after the conclusion of the second RTC, Gandhi, if one goes by the word of M S Aney who was acting president of Congress in 1933, “no longer believed in communal settlement and wanted the Congress to work purely on national basis in considering any new constitution of India”.48

On his return, Gandhi and all leading Congress leaders were imprisoned and “many of the rank and file followed, by May there were 36,000 prisoners”.49 The British government initiated a series of “shock and awe” ordinances to overwhelm the Congress organisation and the civil disobedience movement. The idea that “the Gandhian campaign had come to an end”50 was gaining currency by early 1932. The setback for the “ nationalist” discourse of swaraj was further compounded by Ramsay MacDonald’s communal award that projected a fractured vision of the Indian nation state by assuring separate electorates for both communities and castes. Gandhi commented that this award “seeks to create such divisions in the country that it can never stand up on its own legs”.51 Gandhi had stated at the second RTC that “the claims advanced on b ehalf of the untouchables are the unkindest cut of all. I will resist it with my life.”52 He went on a fast unto death that was, in his own words, “aimed at statutory separate electorates in any shape or form for the Depressed Classes”.53

Ambedkar: The Central Figure

A conference was convened at Bombay under the presidentship of Pandit Malaviya to come up with an agreement that could convince Gandhi to withdraw his fast. The week from 19th to 25th September 1932 was an epic one in Indian history that saw leading personalities of modern Indian history involved in negotiations. “It was a situation that taxed the n ation’s nerves.”54 Some of the leaders who took part in these negotiations were

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Ambedkar, R Srinivasan, Solanki, C Raja gopalachari, Rajendra Prasad, Pandit Malaviya, M R Jayakar, B S Moonje, T B Sapru, H N Kunzru, M C Rajah, Chimanlal Setalvad, G D Birla, A V Thakkar, M S Aney, Purshottamdas Thakurdas, Walchand Hirachand and others. At Yerwda jail along with Gandhi there were Devadas Gandhi, Sarojini Naidu, Vallabhbhai Patel, Mahadev Desai, N C Kelkar and Pyarelal. On the first day of the conference at Bombay, Ambedkar stated that “although I regard the question of separate electorates as closed by the Communal Award yet I am prepared to negotiate with Mr Gandhi as he was the chief opponent in London”.55 Ambedkar further added that “I will not discuss the question with anybody else other than Mahatma Gandhi”.56 In turn, Gandhi, in an interview to the press conceded the principle of reservation of seats stating that although he held “strong views about reservation of seats”, nevertheless he would “abide by any agreement on the basis of joint electorates”.57 Further, in a private letter, Gandhi wrote to P N Rajbhoj of his desire to meet Ambedkar, a tacit acceptance of Ambedkar’s representative credentials which he had questioned earlier in London.

This was a quantum leap from the encounter of confrontation between the two at the second RTC where, in the words of C Rajagopalachari, “Mahatmaji received many wounds in London. But Dr Ambedkar’s darts were the worst”.58 Ambedkar was dictating the terms of these negotiations. The secretary of state noted that Ambedkar “has put forward some very sweeping demands as an alternative to separate electorates”.59 Sapru prepared a scheme based on primary and secondary elections wherein the primaries would be through a panel system (a soft form of separate electorates) and the secondary and final elections through joint electorates with reservation of seats. In his meeting with Ambedkar Gandhi stated that “primary election would not offend against my vow”.60 The negotiators had to concede even reservation of seats at the central legislature even though it did not form part of the communal award. The Congress Hindus and representatives of the Mahasabha and Congressmen in general were under tremendous pressure to come to an agreement.61 Ambedkar was exerting his own pressure on them by approaching them with the principle of maximum extraction insisting that “nothing be left unresolved” and that he was “keen on deciding matters once and for all”.62 C himanlal Setalvad remarked after the conclusion of the pact that “If Gandhiji had to be saved, everything that Dr Ambedkar asked for had to be conceded. Dr Ambedkar was the central figure in the conversations with Gandhi.”63

These various agreements were bundled into what is known as the Poona Pact. The implications of this historic agreement were that first, Ambedkar became established as a prominent Depressed Class leader on a national platform. Second, reservation of seats for castes became statutorily entrenched through a consensus based on negotiations between representatives of castes and this eventually made its way into independent India’s Constitution. Third, the successful completion of the Gandhi-Ambedkar dialogue of 1932 raised hopes that a wider settlement may now be possible. On the day of the announcement of Gandhi’s fast, Sapru wrote to G D Birla on the need for a pact with the Depressed Classes, stating that “this Pact may lead to other important constitutional solutions”.64 Ambedkar entered into an agreement with caste Hindus through a dialogue with Gandhi for three reasons. One, Gandhi acknowledged Ambedkar as a Depressed Class representative. Second, Gandhi conceded the principle of reservation of seats, which he had

o pposed in London. Third, Ambedkar was disappointed with the communal award. He wrote to the secretary of state that parts of the award “have come as a shock to me” and “the Depressed Classes are furious”.65 This leads to an assertion that is contrary to the popular as well as academic consensus on this historic encounter of 1932 that “Ambedkar was unable to withstand public pressure to defer to the force of Gandhi’s fast”.66

Separate Electorates

The aspirations for a wider settlement led to the convening of a Unity Conference at Allahabad at the tail end of 1932. The groundwork for these negotiations was carried out by Pandit Malaviya and Maulana Shaukat Ali. On 16 October 1932, the All Parties Conference of Muslim Leaders hammered out a resolution wherein they agreed to put the issue of separate electorates on the negotiating table “subject to the definite acceptance of the Muslim demands”.67 Gandhi’s intent to mediate on these negotiations may be understood by M S Aney’s letter that said, “Everything will be done as desired by you. You will shortly proceed to Allahabad to attend the open session, I believe.”68 Maulana Shaukat Ali made an attempt to have Gandhi released and approached the viceroy who, however, refused. As for Malaviya’s efforts, B S Moonje remarked that “he (Malaviya) is obsessed with one idea, i e, forcing the Prime Minister to now change his award in respect of Moslems”.69 The Mahasabha was still open for a dialogue between communities. It, however, had its own reasons for doing so. It concluded that Hindus “cannot fight the Muslims particularly if they start civil war. We must concede all 14 points of Jinnah and, at any cost, resolve our quarrel with the Muslims.”70 This statement is indicative of the fact that the word “unity” had many meanings. Shaukat Ali called this conference the “Swadeshi Round Table Conference”.71 It was presided over by veteran Congress and Mahasabha leader and eminent constitutionalist, C Vijayaraghavachariar who, in his opening address stated that they had “met to consider the situation created by the Premier’s Award and the Poona Pact. If we wish to be a nation, an integration of communities must take place.”72

On 1 November 1932, an informal gathering had taken place of Sikh and Hindu delegates from Punjab, Bengal, Sind, the United Provinces, Central Provinces and Madras at K N Katju’s residence at Allahabad. Pandit Malaviya, C Vijayaraghavachariar, G D Birla, Raja Narendranath, Sir Sundersingh Majithia, Ujjal Singh, Ramanand Chatterjee, Radhakumud Mukherji, C B Chintamani, H N Kunzru, M S Aney and B S Moonje were present. The next day saw the arrival of C Rajagopalachariar and the Depressed Classes leader from Madras M C Rajah, Rajendra Prasad, K T Shah, M Shaukat Ali, Abul Kalam Azad, G B Pant, Giani Kartar Singh (of Akali Dal and SGPC), Sardar Kartar Singh, Giani Sher Singh (SGPC), Ziauddin Ahmad and others. The agenda for discussion was (1) Settling of Fundamental Rights – inclusion of Personal Law of Muslim Sharia in the Declaration of Fundamental Rights demanded by the Jamiatululama. This was agreed to in principle, (2) Equal rights to the Frontier and Baluchistan, (3) Representation by Convention on Minorities in cabinets and services, (4) Agreement over the Punjab question, (5) Tentative Settlement of Bengal, and

(6) Separation of Sind. Ambedkar wrote a letter to the conference that was read out by G K Malaviya which read “there was no greater stumbling block than disunity. Hindus must drop their doctrinaire attitude and Muslims must cease saying that their first word on the 14 points was also their last word.”73 Never before, in the history of negotiations between communities and castes, was so much put forward on the negotiating table and so much lost. K M Ashraf suggests that “Hindu leaders at Allahabad approached the problem of Indian minorities even more generously than their predecessors at Lucknow at 1916”.74 The entire first week was spent discussing the question of “Sind Separation which was giving the greatest trouble”.75 A draft document of agreement was prepared for ratification by the regional community bodies. The “Text of the Agreement arrived at by the Unity Conference”76 protected personal laws, and gave Muslims 51% of the seats in the legislative councils of both Bengal and Punjab. Hindus were restricted to 44.7% in Bengal and to 27% in Punjab. Sikhs were allotted reservations of 20% (as opposed to the 30% demanded by them from the time of the Nehru Report). The text agreement makes it clear that the conference did not consider itself to be a definitive body and realised that the participants were on a strict mandate.

Thus, it provided that the agreement had to be ratified by the “regional bodies” of the communities. This ratification ran into a series of suggested amendments that the conference could not resolve and the draft eventually collapsed. This marked the end of the phase of “comprehensive negotiations”. The unity conference was the last such voluntary public gathering of leaders on such a grand scale on the constitutional issue of reconciling the contest between communities. The breakdown of dialogue enabled the introduction of the Government of India Act 1935 along with the provisions of the communal award as amended according to the Poona Pact.

The following is a brief summary of the main trends in the remaining three phases. In the second phase (1935-46), the dominant theme was the withdrawal of the Hindu Mahasabha from the constitutional dialogue. In the first phase, they were part of the negotiations from 1925 to 1932. Critical of the communal award, the Mahasabha, under Savarkar, embarked upon a discourse of cultural confrontation. Further, the M ahasabha was suspicious of any negotiations by Congress leaders with the Muslim League, especially due to the Congress’ ambivalence on the communal award. The Congress N ationalist Party (CNP) represented the link between the M ahasabha and the Congress but the merger of CNP with Congress for the 1937 elections broke this link. In 1939, the M ahasabha passed a resolution stating that “the Congress does not and cannot represent the Hindus, no constitutional settlement arrived at behind the back of the Mahasabha will

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SPECIAL ARTICLE

be binding on Hindus until it is sanctioned by the Mahasabha”.77 On the other side, Fazl-i-Hussain went about consolidating the All India Muslim Conference as “the most powerful

o rgan of Muslim opinion of India till the GOI Act 1935 assured safeguards for Muslims in the new constitution”.78 The 1942 All India Muslim League resolution stated that “the only solution of India’s constitutional problems is the partition of India into independent zones”.79 The constitutional dispute between communities threatened to be replaced by cultural confrontation. Fazlul Huq, according to the Mahasabha, “has threatened actual revolt and civil war if the Indian constitution is not drafted to their entire satisfaction”.80 The contest between the two visions of “nation through constitution” and “constitution through nation” remained irreconcilable. The making of a nation (independence) and the unmaking (partition) are not parallel narratives of secularism and communalism but “lateral interactions” through constitutional discourse between castes and communities. The third phase saw the Indian constituent assembly preside over the birth of the undefined constitutional principle of “Indian secularism” by scrapping reservation of seats, except for the scheduled castes (Hindus, Sikhs, Buddhists but not Christians or Muslims) and tribes and resolved that representation would be on purely national lines. Nehru stated in the assembly that this was “the right thing to do”.81 This was not merely a “moment of containment”,82 as Rojana Bajpai says rather it was one of the most prolific a ttempts at a realignment and reshaping of the cultural fault lines between castes and communities, as undertaken by the constituent assembly of India, simultaneously with the structuring of the postcolonial welfare state. The Constitution a ttempted to reinterpret the notion of community as an “empirical fact” of the universalised community of welfare scheme subscribers of the Indian nation state.

The last and fourth phase consists of the contemporary d ebate over affirmative action demanded by castes and communities. The rivets of the consensus on the making of the n ation state through affirmative action for castes within the Indian constitutional regime while leaving that of community (particularly Muslims and Christians) to the goodwill of I ndian secularism wherein “the state controls the way in which religious and ethnic identities were conceived and empowered”83 are falling apart. They are threatening to collapse u nder the pressure of emerging demands of affirmative action from both castes and communities. The recent momentum in favour of integrating Muslims within the Other Backward Classes (OBCs) and dalit Muslims through affirmative action has brought to the landscape of postcolonial discourses of power the fragility of the constitutional consensus on the d evelopmental nation state. It remains to be seen how the c ontest between these two strands manifest constitutionally and politically. The first strand – that of reservation for Muslims as a community is being spearheaded by the dominant cultural groups like the Jamiat-Ulama-i-Hind, Jamaat-e-Islami, the All India Muslim Personal Law Board (AIMPLB) and the Majlis-e-Ittehadul Muslimeen. The second reservations for Muslim dalits has remained localised, unable to match the influence of and opposed by the first strand. A curious group working for a larger Muslim cultural consensus on political issues is the Popular Front of India which is influential in south India and have expanded their cultural alliance to include Muslim cultural groups from Rajasthan and the Lilong Social Forum of Manipur (Lilong is a Muslim majority nagar panchayat in Manipur).

Conclusions

The engagement of these discourses of castes, communities and castes within communities with the processes of democracy is indicative of the logic of the Indian Constitution being implicated with that of affirmative action. The history of the idea of democracy cannot be delinked from that of constitutional affirmative action in India. The contest across cultural fault lines between castes, communities and castes within communities manifests itself through many signs, affirmative action being one such marker. The anti-colonial nationalist discourse of the mass movements resolved upon swaraj first and constitution thereafter. On the other hand, caste and communities were, in parallel, seeking an agreement over an “ Indian Constitution” first and thereafter on “India”. The matrix of castes and communities is, in postcolonial India, under constant re-evaluation as “new” minorities (for instance OBCs, Jats in Haryana, Gujjars in Rajasthan, emerging Sikh sects or deras) emerge from within traditional ones and leverage for a constitutional minority status. This trend of Indian politics has and will, besides realigning the cultural fault lines between castes and communities, come into confrontation with the c onstitutional principle of a ceiling of 50% on reservations e stablished by the Supreme Court. This contemporary debate on affirmative action invites a more complicated interpretation than merely “the gradual ascendance of primordial politics”84 if it is seen in the mirror of the unbroken history of embedding castes and communities within a “shared” constitution that b egan with “comprehensive negotiations” early in the 20th century. Thus, re-situating constitutional studies, at least in part, within “the dialectic of source and discourse” that is, history.

Notes and References 5 Bipan Chandra (1971): Modern India (Delhi, Democracy” in Zoya Hasan, op cit, 68. 1 A Kohli, ed. (2001): The Success of India’s De-NCERT), 212. 9 Ashok Acharya (2010): “Constitutionalising mocracy (Cambridge: Cambridge University 6 For the thematic of Culture, Community and Difference: The Indian Experiment” in Achin Press), 3. Power see Shashi Joshi (1997): Struggle for He-Vanaik and Rajeev Bhargava (ed.), Understand2 Zoya Hasan and E Sreedharan and R Sudar-gemony in India, 1920-34, Vol 1 (Delhi: Sage). ing Contemporary India: Critical Perspectives shan, ed. (2005): India’s Living Constitution: 7 For a perspective on constitutional politics and (Delhi: Orient BlackSwan), 75. Ideas, Practices, Controversies (London: An-caste discourse in Bengal see “Constitutional 10 Mridula Mukherjee Presidential address, them Press), 9. Politics and a Fissured Community” in Sekhar “Communal Threat and Secular Resistance: 3 Bhagwan Josh (1992): Struggle for Hegemony in Bandopadhyaya (1997): Caste, Protest and From Noakhali to Gujarat” presented in the I ndian India 1934-41, Vol II (Delhi: Sage), 54. Identity in Colonial India: The Namasudras of History Congress 71st Session, Malda 2011. 4 B R Nanda (1995): Jawaharlal Nehru: Rebel and Bengal, (Surrey: Curzon Press), 136-172. 11 Bipan Chandra (1987): Communalism in Mod-Statesman, (New Delhi: OUP), 22. 8 Sunil Khilnani, “The Indian Constitution and ern India (Delhi: Vikas Publishing), 206.

Economic & Political Weekly

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12 Dr B R Ambedkar (2009): What Congress and Gandhi have Done to the Untouchables? (Delhi: Gautam Books, reprint), 34.

13 Proceedings of the Sub Commitees, Volume VI (Franchise), Indian Round Table Conference, London, 1930, Nehru Memorial Museum and Library, Delhi, p 531.

14 Mahatma Gandhi, Young India, Volume 13, I ssue 2, Volume 14, Issue 2, 327.

15 Wolpert Stanley (2008): A New History of India (US: OUP), 259.

16 Richard Cashman, I (1975): The Myth of the Lokmanya: Tilak and Mass Politics in Maharashtra

(California: University of California Press), 214.

17 Syed Nesar Ahmad (1991): Origins of Muslim Consciousness in India: A World-System Perspective (US: Greenwood Press), 121.

18 K M Munshi (1967): Indian Constitutional Documents, Vol 1 (Delhi: Bharatiya Vidya Bhavan), 7.

19 C Vijayaraghavachariar, incomplete Papers, S No 5, Manuscript Section, Nehru Memorial Museum and Library (NMML), Delhi, 2.

20 Richard Sisson and S A Wolpert, ed. (1988): Congress and Indian Nationalism: The Pre-independence Phase (California: UCLA Press), 86.

21 Ayesha Jalal writes that “The Khilafat Movement Overwhelmed the League and Broke the Fragile Constitutional Understanding between Congress and League Which Jinnah Had Painstakingly Helped to Construct” in A Jalal, ed. (1994): The Sole Spokesman: Jinnah, Muslim League and the Demand for Pakistan (Cambridge: Cambridge University Press), 9.

22 John Gallagher and Gordon Johnson and Anil Seal (1973): Locality, Province, and Nation: E ssays on Indian Politics 1870-1940 (Cambridge: Cambridge University Press), 22.

23 Annie Besant (2003): Theosophist Magazine, July 25-September 1925 (US: Kessinger reprint), 686.

24 Ikram Ali Malik (1970): A Book of Readings on the History of Punjab (Lahore: University of Punjab), 446.

25 Peter Hardy (1972): The Muslims of British I ndia (Cambridge: Cambridge University Press Archive), 211.

26 Christophe Jaffrelot (2007): Hindu Nationalism: A Reader (Delhi: Permanent Black), 13.

27 Ibid, p 67.

28 Ibid, p 71.

29 Uma Kaura (1977): Muslims and Indian Nationalism (Delhi: Manohar Books), 31.

30 Motilal Nehru Papers, Subject File No 23, Part (i), NMML, Delhi, 76.

31 Ayesha Jalal (2000): Self and Sovereignty: Individual and Community in South Asian Islam since 1850 (London: Routledge), 307.

32 Motilal Nehru Papers, Subject File 24, NMML,

Delhi, 8.

33 Motilal Papers, op cit, Ref 32, p 59.

34 K L Tuteja (1984): Sikh Politics 1920-40 (Kuruk

shetra: Vishal), 145.

35 Motilal Papers, op cit, Ref 34, 2.

36 Nehru Report quoted in K Singh, ed. (1991):

S elect Documents on the Partition of Punjab,

(Delhi: Natural bookshop), xi.

37 Motilal Papers, File No 23, Part (i), NMML, Delhi.

38 Ibid.

39 Ibid, p 59.

40 M K Gandhi (1970): The Collected Works of M ahatma Gandhi, Vol xxxviii (Delhi: Government of I ndia), 436. This entire letter is quite revealing in terms of the issue of reservation of seats.

41 Motilal Nehru Papers, Subject File 23 (Part II), NMML, Delhi, p 59.

42 Gandhi’s letter to Motilal in Motilal Papers, File 23 (II), NMML, Delhi, 17-23.

43 Judith Brown quoted in Sekhar Bandopadhyaya (2004): From Plassey to Partition (Delhi: Orient Blackswan), 315.

44 Bombay Chronicle, 6 November 1931, NMML, Delhi, p 8.

45 Letter, 6 November 1931, C Vijayaraghavachariar Papers, Correspondence B S Moonje, NMML, Delhi, 1.

46 N Gangulee (1936): The Making of Federal India

(London: James Nibset), 126.

47 Ibid, 126.

48 C Vijayaraghavachariar Papers, Correspondence, M S Aney, dated 5 January 1932, NMML, Delhi, p 1.

49 Philip Williamson (2003): National Crisis and National Government: British Politics, the Economy and Empire 1926-1932 (Cambridge: Cambridge University Press), 491.

50 Andrew Muldoon (2009) Empire, Politics and the Creation of the 1935 India Act: The Last Act of the Raj (Surrey: Ashgate Publishing), 107.

51 Mahadev Desai (1953): The Dairy of Mahadev Desai, Vol I, Trans Valji Govindji Desai (Ahmedabad: Navjivan Publications), 291.

52 B R Ambedkar, op cit, Ref 15, 67.

53 Gandhi’s interview to press, Madras Mail, 22 September 1932, NMML, Delhi, 5.

54 B D Shukla (1960): A History of the Indian L iberal Party (Allahabad: Indian Press), 327.

55 Madras Mail, 20 September 1932, NMML, D elhi, p 7.

56 Moonje Papers, Diaries, NMML, Delhi.

57 “Mr Gandhi on Purpose of Fast”, Madras Mail,

22 September 1932, 5.

58 C Rajagopalachari Papers, Instalment IV, Subject File, S No 23, NMML, Delhi, p 5.

59 United Kingdom, National Archives, Cabinet Papers, “Communal Decision”, CAB/24/233; SECRET.CP.322(32); Printed for the Cabinet on 24th September 1932 by the India Office of Secretary of State for India, 5.

60 Mahadev Desai Papers, Instalment VI, Diary, September 1932, NMML, Delhi, pp 67-72.

61 In the aftermath of the Pact many, especially in Bengal and Punjab, believed that “by his threat of fast unto death Gandhi coerced the Hindus to ratify the Poona Pact and separate electorates was changed into reservation of seats at a premium” M S Aney Papers, Subject File 6, NMML, Delhi, p 138.

62 Pyarelal (1932): The Epic Fast (Ahmedabad: MM Bhatt), 64-65.

63 Chimanlal Setalvad, “Poona Agreement as Liberals View It”, Bombay Chronicle, 15 October 1932, 11.

64 Ghanshyam Das Birla (1953): In the Shadow of the Mahatma: A Personal Memoir (Bombay: Orient Longman), 67.

65 Viscount Templewood (Samuel Hoare) Papers, NMML, Delhi.

66 Nicholas B Dirks (2003): Castes of Mind: Colonialism and the Making of Modern India (Hyderabad: Orient Blackswan), p 269. Upendra Baxi (2005) wrote that “In 1932 Gandhi Gambled on Ambedkar’s Self-restraint and Won”, C Jaffrelot, Analysing and Fighting Caste: Dr Ambedkar and Untouchability (Delhi: Permanent Black), 65. Christopher Jaffrelot writes, Gandhi’s fast “forced Ambedkar to relinquish his demand for Separate electorates and to sign the Poona Pact”, ibid, 4.

67 K M Ashraf in J Ashraf, ed. (2008): Historical Back ground to Muslim Question in India 17641945, Volume 2 (Delhi: Mainframe Publishers), 58.

68 Letter from M S Aney to M K Gandhi dated 24 November 1932 in M S Aney Papers, Subject File No 6. 1932, NMML, Delhi, p 6.

69 Moonje Papers, Diaries, NMML, Delhi.

70 Ibid.

71 Bombay Chronicle, “Shaukat Ali Blames Viceroy’s Advisors”, 1 November 1932, NMML, Delhi, p 1.

72 Ibid, “For United India”, 4 November 1932, p 1.

73 Dr Ambedkar quoted in Bombay Chronicle,

“Unity Now or Never”, 5 November 1932, p 16.

74 Ashraf, op cit, Ref 67, 63.

75 Bombay Chronicle, 7 November 1932, p 1.

76 M S Aney Papers, Draft Report and the Final

Agreement in Subject File No 3, 1932, Manuscript Section, NMML, Delhi, pp 34-54.

77 M S Aney Papers, Subject File 7, NMML , Delhi, 90.

78 Malik, op cit, Ref 26, 449.

79 A C Bannerjee, Indian Constitutional Documents, Vol IV (Calcutta: A Mukherjee, 1945), pp 171-72.

80 M S Aney Papers, op cit, Ref 72, 68.

81 Constituent Assembly Debates (CAD), Book 3, Vol VIII, 4th edition (Delhi: Loksabha Secretariat, 2003), p 330.

82 Rochana Bajpai (2011): Debating Difference: Group Rights and Liberal Democracy in India (Delhi: Oxford University Press), 30.

83 William Gould, “Contesting Secularism in Colonial and Postcolonial North India between the 1930 and 1950s”, Contemporary South Asia, 14(4), December 2005, 491-92.

84 D Gupta, “Limits of Reservation”, Seminar No 549, May 2005.

february 18, 2012 vol xlvIi no 7

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