Politics

Ideas of India: Tensions Within the Indian Constitution

Shruti Rajagopalan and Arvind Elangovan discuss colonialism, nationalism, the politics of constitution-making and the legacy of B.N. Rau

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Shruti Rajagopalan

Ideas of India is a podcast in which Mercatus Senior Research Fellow Shruti Rajagopalan examines the academic ideas that can propel India forward. You can subscribe to the podcast on AppleSpotifyGoogleOvercastStitcher or the podcast app of your choice.

In this episode, Shruti talks with Arvind Elangovan about his book, “Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50.” They discuss the tensions surrounding the making of the Indian Constitution, the legacy of colonialism, the differing viewpoints of leaders such as Nehru and B.N. Rau and much more. Elangovan is an associate professor of history at Wright State University in Dayton, Ohio. His research interests include the political and constitutional history of South Asia, postcolonial India and the history of political and social thought.

SHRUTI RAJAGOPALAN: Welcome to Ideas of India, a podcast where we examine academic ideas that can propel India forward. My name is Shruti Rajagopalan. Today my guest is Arvind Elangovan, who is an associate professor of history at Wright State University in Dayton, Ohio, and the author of “Norms and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50.”

We talk about the tensions between colonialism, constitutionalism and nationalism; B.N. Rau’s role in operationalizing the 1935 act; constitutional imagination versus constitutional negotiation, Tamil comedies and much more.

For a full transcript of this conversation, including helpful links of all the references mentioned, click the link in the show notes or visit Discourse Magazine DOT COM.

Hi, Arvind. Welcome to the show.

ARVIND ELANGOVAN: Thanks, Shruti. Thanks for having me.

RAJAGOPALAN: This is such a pleasure. I really, really enjoyed your book, “Norms and Politics.” I have read it a couple of times already, and I have a feeling it’s one of those books where I’m going to keep going back to reference a particular section or a particular chapter. Speaking quite broadly, in this book you bring in both the historical and the political context and convert Indian constitutionalism not into a single moment, but into a decades-long process. And you invite us to get a ringside view of this decades-long process through the career of B.N. Rau.

The Core Constitutional Tension

RAJAGOPALAN: In one sense, your book is both a response to, and a critique of, the view that the Indian Constitution was the result or the culmination of this great nationalist project—that this is a seamless transition out of colonialism. Colonialism—there’s a line that is drawn, and it ends, and then the nationalist project wins. Some of it is because the foundational works on the constitution were written the moment the nationalists had their moment of glory in the ’50s and so on.

You instead talk about the tension between colonialism, nationalism and constitutionalism. Now, the tension between these three big dynamics—there are various manifestations of it. According to you, what is the core tension? Is it a tension over sovereignty? Is it a question of identity, whether it’s group identity or individual identity? Is it a question of autonomy? Is it a question of political power, who gets to be in political office? Though you’ve touched upon these various manifestations, what is the core tension between nationalism, colonialism and constitutionalism, according to you?

ELANGOVAN: That’s a great question. It is something that I’ve been thinking about a lot. And if I may, just as an aside mention by way of background—for instance, when I first began grad school and I knew I wanted to work on the Indian Constitution, but I had no idea what it was going to be, the initial difficulty was, how does one even envision this project?

The Indian Constitution is so huge, and then there’s a huge legal literature. Then there was Granville Austin. It became clear through grad school and then especially afterwards, actually, that there is a whole lot more that is going on than is allowed in the existing literature. That’s usually the process too.

There, I think—and I feel very strongly about this—one of the very powerful assumptions that underpins constitutionalism and constitutional studies, both in India and abroad, is really that scholars have generally conflated constitutionalism with nationalism, and constitutionalism with colonialism, especially if they do colonial history of the Indian Constitution.

From the evidence that I’ve looked at—it’s not in this book, but in a separate article that I’ve written about the 1919 act—it became clear to me when I see that the project of constitutionalism actually does not produce a singular subject during colonialism. One thing that has happened in the literature and the scholarship is, there is an assumption that the subject of the constitution—whether in the colonial state it was a subject, in the postcolonial it’s the citizen—but that subject has always been envisioned in a singular way.

The problem is, colonial context actually does not produce that singular subject. Colonial constitutionalism actually produces a divided subject and a divided population. Now, how does this happen? This is what I found in the 1919 act, which is, as we know, diarchy, and the legislation allowed Indians to run certain departments in the colonial government.

At the same time, if we look at the language and if we look at the rhetoric and we look at the debates that happen in House of Commons, House of Lords and even among the Indian nationalist circles, some in the Home Rule League and the Congress and the Muslim League, there is a striking semblance and the striking commonality where elites on both sides are basically arguing, and they’re assuming that a good portion of the Indian population is not ready to be given the idea of self-government. They cannot be; they have to be trained. They have to be educated, but a certain portion of the population, though, is perfectly capable of self-government.

What is interesting is, there is a split recognition of the masses that happens, and this ties in very nicely with the colonial project, in the sense that the colonial ideology basically believes in this.

RAJAGOPALAN: And it continues.

The Role of the Nationalists

ELANGOVAN: And it continues. And the nationalists too. Now, this tension becomes even stronger as we go along the 1920s and the 1930s. Nehru reports, for instance. we need people, we need self-government. But then there are different political constituencies and there are different political parties, and they don’t see eye to eye on the question of the constitution.

For me, that was very interesting. Then 1935 act, we all know what happened in the Round Table Conferences, all the tensions and Gandhi and Ambedkar. Then the 1935 act, again, is a classic example of a divided population because you have provincial autonomy for the British provinces. They wanted to do something else for the princely states, but that didn’t really work out.

At no point of time could the mythical idea of the constitution, “we the people,” could ever be fully implemented in the colonial period. The nationalists could never be united as “we the people,” and they quickly found out that constitutionalism and nationalism does not really go together. Even for the colonial state, the interesting distinction that they have—this is something, I use Bhaba to make this argument—where constitutionalism indicated that they had to split the British sovereignty too.

On the one hand, they had to believe in their right to rule over India. British sovereignty had to be protected, but then you had to accommodate Indian sovereignty partially. In some ways, Rau was someone who sees this tension and who sees this contradiction very clearly, and that helps him in implementing the 1935 act.

For both the colonial state and for the nationalist groups, constitutionalism emerges in colonial India as this piecemeal project. It emerges as satisfying some interests, some of the time, and never all interests, all of the time. That is the colonial legacy of Indian constitutionalism. The making of Pakistan is an excellent illustration of why this project of a seamless imagination of the people never really translated into a united imagination of “we the people” in the constitution.

The making of Pakistan, in itself, is an excellent illustration of why there’s a tension between nationalism and constitutionalism. For me, this colonial context—with all its political ramifications with respect to constitutionalism, and therefore the tensions between colonialism and constitutionalism, and nationalism and constitutionalism—I think that endures. We haven’t talked about it sufficiently. I try to, but in general, that’s what I feel.

RAJAGOPALAN: I would actually take your argument further, though that’s not what you do in the book. I would say even today, the tensions we have in India, they are a tension between the colonial legacy, the nationalist sentiments and constitutionalism. But of course, now what we mean by constitutionalism is quite different than what you were talking about in 1935, right?

That’s fundamentally changed, but whether we talk about the Citizenship Amendment Act and the NRC today—whether we talk about what are we supposed to do with Jammu and Kashmir and Article 370 or how do we think about a state versus a union territory, or how do we think about splitting a state—like Telangana was carved out of Andhra Pradesh. A lot of the big constitutional questions, even today, are about exactly the tensions between these three aspects that you’re talking about.

ELANGOVAN: Oh, absolutely.

RAJAGOPALAN: Except now we are talking about colonialism as a legacy, as opposed to a living, breathing reality in everyday life.

ELANGOVAN: This is something I’ve been working on more recently. It’s certainly not in the book. What I find interesting is, again, going back to the initial split that we have forgotten, the two stories of the Indian Constitution. There is a good history of the Indian Constitution that is all about the state and is a history of political power. Then there’s another tradition, another history of the Indian Constitution, which is all about the power of the people and the rights of the people and the rights of the citizens and so on and so forth. Much work, recent work—and so even if we take Madhav [Khosla] and Rohit [De]’s book, which—Rohit’s book, especially, I really like.

RAJAGOPALAN: We’ve had both of them on the podcast before. We’ll link to those episodes [Madhav Khosla, Rohit De].

ELANGOVAN: It’s really a classic illustration of how we should read the constitution as rights of the citizen, as the people’s constitution, right?

RAJAGOPALAN: Yes.

Creating a Powerful State

ELANGOVAN: That’s only one part of the story. The other part of the story is really the question of constitution and the creation of this really powerful state. This is what, in the conversation with Arudra Burra, who also works on constitutionalism—and we have talked about this—where we have stopped writing histories of the constitution as histories of political power. Because we don’t do that, when we see situations like what’s happening in Kashmir, whether it is the Citizenship Amendment Act, what we are really seeing, as you said too, is really the two traditions of constitutionalism are colliding with each other.

The tradition of political power as vested in the state, of the creation of the state, and the tradition of speaking for the constitution from the point of view of the people—it seems clear to me that these contemporary events indicate that we need to do both. But we certainly need to keep an eye and we need to do more histories of constitutionalism as political power and not simply as rights.

RAJAGOPALAN: Here there’s a third element because when we think about constitutionalism of present day, the politics of the power of the state versus the rights of the individual, it’s very different from what was going on in the ’30s and the ’40s. Because there, the negotiation of the power of the state was whether it’s a colonial state or a homegrown Indian state, and all the focus was on empowering a homegrown Indian state as opposed to the colonial state. Somewhere in the midst of this, individual rights have to be negotiated, but that’s a separate matter, right?

ELANGOVAN: Yes.

RAJAGOPALAN: Now, today, in the absence of a colonial state, we really need to think about, have we gone overboard in empowering the political powers of the state, the economic powers of the state, the emergency powers of the state—which was originally a nationalist project. But today, there is no other state in question. No one is questioning Indian sovereignty. They may critique it, but no one is questioning the legitimacy of it.

Now the fault lines have been redrawn in one sense. That’s another reason that a lot of the old historical material, which has such a big emphasis on developing the capability and the power of the state, may not serve the purpose it is supposed to serve today, which really should be: The constitution has to bind the hands of the state.

ELANGOVAN: No, absolutely. To me, one of the striking images from recent times—and I’ve talked about this elsewhere—is, I think it was 2019 after Modi got elected, and he addresses the National Democratic Alliance’s parliamentary meeting right after the election. But just before that, he bows before a copy of the constitution. That’s an enduring image. Then there’s equally another image, of course, of people’s protests against the citizenship. They are reading the preamble.

Now, this is perhaps for the first time in contemporary India where we have both the head of the state—well, not the head of the state, but he’s the head of the government—but in this case, head of the government is also worshiping “the constitution.” The people are also invoking the sanctity of the constitution to protect their rights, but the interesting thing is there’s something so wrong with the two images being juxtaposed like that.

RAJAGOPALAN: Absolutely.

ELANGOVAN: Previous to this government, other governments too have used and overused the state’s powers, but they never really worshiped the constitution publicly in the way it happened more recently. You’re right. In that sense, we are witnessing this open conflict, for the first time, between two traditions of constitutionalism.

RAJAGOPALAN: We don’t have the colonial power anymore as an easy villain.

ELANGOVAN: Which is why we also cannot merge nationalism with constitutionalism because that tension is there. Those two images, if we juxtapose them, that clearly reveals the tension in all its public manifestation.

State-Led Development Planning and Individual Rights

RAJAGOPALAN: This is just one of the things that I’ve been thinking about over and over again since I read your book, that “Oh my god, we have this really big problem.” I came at it from a slightly different point of view.

When I was doing my graduate work, it was on amendments to the Indian Constitution. The way you are seeing a lot of the tensions in the few decades before the constitutional moment, I saw a lot of tensions in the few decades after the constitutional moment, so to speak. To me, amendments are a very classic source of tension and their resolution, because clearly there is a problem, otherwise you wouldn’t amend the constitution.

The nature of the problem and the nature of the battle—whether it’s between the legislature and the judiciary, whether it’s between individual or group rights, whether it is between the development agenda of the state or the socialist agenda of the state and the individual rights of the people—these things became quite clear. And I’m an economist, and to me, one of the very important sources of tension was that the nationalist government, which then became the government of India, thought of the state as the engine of development, which is quite different from Enlightenment ideas or founding of the U.S. Constitution.

The model prevailing at that time was socialism. I mean socialism as an economist, which is control over means of production, control over prices and so on. This is really at odds with a lot of the liberal rules and rights that have been read into the constitution. You talk about how B.N. Rau figured this out sooner than anyone else. B.N. Rau didn’t want individual rights. He only wanted directive principles in that battle.

He, in some sense, anticipates that this is going to be a problem. Now, some of it is because of his travels abroad, and he realized this was an issue in the Irish Constitution. He realized that the progressives were struggling with the New Deal and all the welfare entitlements in the U.S., because the Constitution was constraining them. He saw this coming, in one sense. What is a way to think about this, if the core belief is that the state must also provide economic rights and it can’t be decentralized?

ELANGOVAN: The way I think about it is looking at some of the debates that happened in the committee meetings of the Constituent Assembly. You had [K.M.] Munshi saying something, you had [Alladi Krishnaswami] Aiyyar saying something, you had Rau’s vision, [B.R.] Ambedkar, of course.

To me, this goes back to the 1935 moment, I think. This book has a little bit of it, but it’s not full-fledged. It’s one of those things where the book keeps getting written even after the book is out.

RAJAGOPALAN: That’s the best kind of book.

ELANGOVAN: I keep rewriting the book in my head too. This becomes clear even with Ambedkar’s text on Pakistan or partition in 1941. I think the nationalist leaders at least are aware that this constitutional framework, of just simply accommodating different interests and coming up as a federation, is not really going to work. Instead, what is really necessary? The struggle is not even so much of freedom, which they all knew that freedom was going to come anyways. This question is, when?

The struggle is really going to be about capturing the state, and capturing the state with all its attendant powers. That recognition is definitely there after 1935, even if it was there in some form before, but after 1935, it gets concretized. I think when all these people—Ambedkar, Munshi, Patel, Rau—they’re all part and parcel of these committee deliberations—I think they realize that the state has to play a huge role in organizing the socioeconomic and other aspects of postcolonial India. To that extent, I think rights could not necessarily be completely unlegislated or could not not be a part of the constitution in the way, perhaps, Rau wanted it to be.

Now, Rau believed in some common law tradition because he was such a—I don’t know if he was an anglophile, but he was certainly influenced by the British system. At the same time, at least in the Constituent Assembly, it becomes clear—in Ambedkar’s mind, it’s very clear that the state had to guarantee these rights, otherwise . . .

RAJAGOPALAN: Yes, and restitutions. Both of them.

Fragmentation and Distrust

ELANGOVAN: I think a history needs to be written there, which is, what is it that made people so distrustful of each other at the time, that they created this kind of a state? To me, it indicates a complete breakdown of any nationalist solidarity, because that nationalist feeling or any ideology could never really be translated into constitutional terms. The only way it could get translated is in terms of the state. State becomes this overarching entity to resolve all problems, which, of course, is a problem.

RAJAGOPALAN: Yes, but then you can’t bind the hands of the state, which is fundamentally the constitutional project, in its long tradition. The purpose of constitutions is to define the limits of the state and bind the hands of state actors. Now there’s this deep tension. As you mentioned, it’s very difficult to give one conclusive view of Indian constitutionalism. You’ve got to look at this from many different angles.

One of the angles that I have come upon, and I’d love to get your take on it, is they wanted the power of the state—in this case, the overwhelming mental model—except maybe [K.M.] Munshi or [C.] Rajagopalachari—of development was socialism. Of course, socialism means many different things. We know that the communists and Marxists walked out of the Constituent Assembly because they thought too many concessions were being made to property holders and things like that.

For the most part, they thought controlling the means of production and the state governing economic life is the way to go. Now, if that’s the project, you need the state to have greater power and fewer binds. Especially if you are going to be the person governing, you want very few restrictions to tie your hands. To me, an embodiment of that is someone like Nehru. He’s already the prime minister. He knows how difficult it is to do land reform, even before the constitution comes into play.

All these questions are being raised. Now you want the legislature and the executive to have a lot of power to dictate these matters. On the other hand, as you mentioned, they don’t trust each other, partially because of linguistic fragmentation, or princely states versus British territories, or Dalits versus upper castes, or Hindus versus Muslim.

Pick your favorite lines of fragmentation, and India has every single one of them. Now there’s a problem that you don’t genuinely trust each other, which means you need to bring in all these things. To me, it seems like that is one source of tension. It’s not the only source of tension, but one source of tension is, you have socialist planners who are trying to come up with a constitution, which means you are always going to try and get more power, but also hold back in case you are not the one in power tomorrow. Does that pass the basic test, according to you? Or is this a wild imagination? Or does it fit with everything else you’ve looked at through the committee reports and things like that?

ELANGOVAN: No, absolutely. In so many ways, again, as I said, this keeps getting rewritten, and I keep rethinking this whole process. One of the advantages—I don’t know if you want to call them advantages—just because of the sheer historical chronological divide between the making of the U.S. Constitution and the making of the Indian Constitution, just to take a comparative example.

With the U.S. Constitution—I’m not an expert in the U.S. Constitution, but from what I know, generally, it’s obviously a very, very specific group of landed, elite white men who made the Constitution in the complete absence of any other oppositional or any other dissenting voices. Whereas that’s not the case with India. The biggest advantage, which also becomes a huge problem for the framers of the constitution in the Constituent Assembly, becomes precisely by 1945/46, multiple constituencies are able to articulate their requirements, their needs, their demands.

Interestingly, they’ve all already had a history of negotiation with the colonial state and the colonial constitutional structure. That was something Nehru and Patel could not ignore. And this is a unique feature of the Indian Constitution. To that extent, I feel that these tensions are really, of course, economic tensions, but they’re also political tensions.

It gets tied into the destiny of the main political party, the Congress, and in the way the postcolonial state unfolds. Yes, as you say, there is a tension between socialism and ideal constitutionalism. That ideal constitutionalism could never be ideal, given the colonial context, which is why I find it fascinating—just in the way the clauses are drafted, it’ll say something and then exceptions one, two, three, four, five, six.

RAJAGOPALAN: I call it “the non obstante constitution,” especially the fundamental rights chapter. Every time there’s a right, there’s a non obstante clause, and you’re like, “What is going on here?”

Constitutional Imagination

ELANGOVAN: Which is where I have a question for everybody who, in contemporary times, likes to invoke the idea of constitutionalism. Pratap Mehta, of course—I know you’ve had him too—is a great scholar. He is one of those in the forefront who talks about constitutionalism, that we need to invoke the idea of constitutionalism. Then the question is, which constitution? What is this constitutionalism? Because it is riddled with so many tensions and contradictions and exceptions and normative principles and history. It’s really difficult. We can talk about constitutional morality. He also talks about it, but how do you pin it down? What is it?

RAJAGOPALAN: Here, I think in your book, through the lens of B.N. Rau, you have shown beautifully that one part of the story is constitutional imagination, but the everyday part of the story is constitutional negotiation. Pratap’s work—to me, his question is always, what kind of imagination are you bringing to the negotiating table? That’s how I interpret a lot of his writing. Not that the constitutional imagination is going to take you all the way through or that it is sufficient, but it is necessary though it may not be sufficient. You can’t come to the negotiating table without an imagination.

I think you show that beautifully through Rau’s work, which is, he has an imagination of how provincial legislatures need to be run, and they do need to be autonomous, and they need to have these powers. They need to be able to figure out law and order in Punjab or who is governing the University of Calcutta, and all these. Those are specific questions on which you rely on precedent or rules of statutory interpretation or something like that to get you all the way through. You have some weapons in your hand, but without the imagination, you have no seat at the table, I think. It can’t be all negotiation and no imagination, or all imagination and no negotiation.

ELANGOVAN: Right. Absolutely. That’s a great point that so much has to do with negotiation. In some ways, Rau was able to do that, one, because of the kind of person he was, and two, because he was a bureaucrat. That’s the job. V.P. Menon has a slightly different—because even though he was also a colonial bureaucrat, he becomes this close confidant of Patel. There is an interesting history to that too.

It’s really when we think about constitutional imagination—an interesting question to ask here would also be, what was Nehru’s constitutional imagination during this entire process? One thing which becomes very clear is—at least I’ve not seen much evidence—we don’t really hear Nehru talking that much about constitutionalism in the 1920s and the 1930s. It’s mostly politics, and for good reason. It’s not like I’m blaming him or anything, but it’s just the way politics was. And he was part of creating that political solidarity, as it were—one could call it that, but not constitutionalism. The imagination of constitutionalism ultimately requires you to submit yourself to a certain process, and that’s what Rau does very nicely too.

Rau enumerates the process through which everybody needs. That’s what happens in 1935. He tells the colonial government, “You guys need to submit to this process.” They’re like, “No, we are not going to submit.” That’s where the interesting tension is too, between Nehru or—what Nehru’s lack of constitutionalism at that point can tell us is really why is it that Nehru does not submit himself, because he’s very critical of the 1935 act. Until the 1946 Constituent Assembly, he is not fond of constitutionalism because he feels that it is restraining him and it’s restraining an idea. It’s only after 1946 that he becomes a participant in the Constituent Assembly, objectives resolution, so on and so forth.

RAJAGOPALAN: I think of Nehru also as, the constitution for him as the means to the end. It’s a means to self-governance, and you can’t have it without a Constituent Assembly. Otherwise it’s a coup, and basically the colonial masters have left and the new Congress masters have taken over. Without some kind of assembly with legitimacy, Nehru can’t get the goal of self-governance that he wishes to get. I wrote a piece about this somewhere.

I call Nehru a reluctant constitutionalist, but post 1950—because he likes the ideals of the constitution, but in everyday governance, when it gets in the way he says, “We shouldn’t make a god out of the constitution or the constitutional provisions. The constitution is a static document. We need a dynamic country and governance.” All this is said in the debates in the first amendment. I’m not quoting verbatim, but these are some of the phrases that he uses.

He creates constitutional blunders like the Ninth Schedule. You know, article 19 is amended in a big way. Nehru also, you know, to implement socialist planning, you do need to subvert federalism because you need to be more centralized. Whether it’s your Essential Commodities Act, which is getting in the way of states setting their own governance agenda, these are all really big problems. He has to keep going back and amending the constitution, which means you can’t then turn around and make a big deal of the constitution that you need to amend probably the next day or the next year.

I think that’s a very interesting tension in Nehru: Nehru the politician versus Nehru the idealist. Nehru the politician has a country to run. Then there’s a separatist movement going on somewhere. There’s a Maoist revolution taking place somewhere. Someone is printing incendiary material about partition, and he’s worried about more riots breaking out.

He has these really big day-to-day problems. Of course, we shouldn’t amend the constitution to suit his day-to-day agenda, but that’s, in fact, exactly what ends up happening. You know all the examples.

ELANGOVAN: I think it was Nivedita Menon’s essay on the first amendment where she makes this interesting contrast that the U.S. Constitution First Amendment is all about free speech, and Indian Constitution first amendment is about restricting.

RAJAGOPALAN: Restricting free speech. Absolutely.

ELANGOVAN: It’s interesting contrast there. No, but you’re absolutely right. I also think, and I’ve asked this of my friends—so far, I’ve not really come across a book that—there are some books, of course, but I’ve not really come across a good, let’s say, sophisticated account of Nehru’s constitutionalism.

Setting Precedents

RAJAGOPALAN: No, I think that’s a big gap. Nehru’s constitutionalism is the defining aspect of Indian constitutionalism today. Nehru amending the constitution for everyday governance issues legitimizes amending the constitution in later years for everyday governance issues. In one sense, if you think about 1950 as the cutoff point, Nehru’s constitutionalism is our precedent for everything, or it is what sets the stage for judicial precedent. It’s Nehru’s battles with the courts which are setting the stage for precedent in future years.

I think you’re right there. What has ended up happening in India, I fear is—we always like a good hero and a good villain. The way we like to tell the story is, Nehru was a great constitutionalist. Then Indira Gandhi came to power, and she was a terrible person who ruined everything. Whereas, I see her as a continuation of that tradition. Of course, she took it to excessive stages. Nehru was a great democrat, which Indira Gandhi wasn’t, but other than that, the constitutional politics is very, very similar.

ELANGOVAN: People forget, declaration of Emergency was constitutional.

RAJAGOPALAN: Absolutely.

ELANGOVAN: It’s there in the constitution.

RAJAGOPALAN: Her protecting the office of the prime minister, amending the Representation of People’s Act and the Election Act, the censorship of newspapers, all that goes in the Ninth Schedule. We forget this, but it is all done procedurally correctly. Even though it’s not constitutionalism by any principles of natural liberty and any kind of constitutional morality, as we call it, but the rules were followed for all practical purposes.

ELANGOVAN: And in the same way with Kashmir now, in the way the legislation was passed to make it into union territory.

RAJAGOPALAN: It’s out of the Indira Gandhi playbook.

ELANGOVAN: It’s that constitutional way of doing things. This happened in Nehru, Indira Gandhi did it and others did it.

RAJAGOPALAN: Everyone has done it. This is basically Indian constitutionalism in its everyday life; it’s how it works. Now the supreme court does it too. The supreme court has sealed envelopes when they want it. They just don’t listen to a matter like election bonds for two, three, four years when they just want to avoid the matter. Every branch of government does some version of this compromise to run their everyday politics and life.

Authoritarianism in the Indian Constitution

ELANGOVAN: I have a feeling that somebody may have written about this. Maybe you’ll know this. Has somebody written a book on the streak of authoritarianism in the Indian Constitution, or authoritarianism and constitutionalism? I want to say—

RAJAGOPALAN: You know, I have seen glimpses of it. For instance, I think in Rohit’s book, I don’t know if it’s intended or not. I think the streak of authoritarianism in the way the state is making petty criminals out of everybody. Men, women, prostitutes, people who are drinking, people who are selling cotton. That authoritarian streak is just so clear to me as a reader of the book. I don’t know if that’s the sole intention of his writing.

In Madhav Khosla’s book, I see a glimpse of it. Though again, he doesn’t characterize it as authoritarian at all, but he does talk about how the constitution has a centralizing tendency because they want to avoid local parochialism and localism. That also is very patronizing and authoritarian. Stalin said the same thing, in one sense.

ELANGOVAN: It’s problematic.

RAJAGOPALAN: It’s very problematic. I see glimpses of this critique in different people’s work. I have certainly made the critique in the economic sense—whether it’s my work on the Ninth Schedule talking about the rent seeking and lobbying that just emerges from something like this, or this fundamental contradiction between socialism and liberalism, both values enshrined in the constitution. I also see some glimpses of it in some of the writings of supreme court judges. There was this wonderful book that came out, a collected volume on 50 years of the Indian Supreme Court.

ELANGOVAN: All right, supreme court.

RAJAGOPALAN: It’s called “Supreme But Not Infallible.” I think that’s the name of the volume.

ELANGOVAN: Yes, I remember that.

RAJAGOPALAN: That has some chapters which talk about the power structure within the constitution in different aspects, which keeps popping up. To me, I think the most authoritarian aspect of the constitution is the centripetalism, that we have placed all our faith in the union executive. Everything else is like a sub-branch of the government to be dictated to. They used to do this from Whitehall and the India Office before; now we’re doing it from North Block.

ELANGOVAN: That really should be the dominant understanding of Indian constitutionalism rather than the other way—

RAJAGOPALAN: The dominant understanding is the Granville Austin understanding, that this is a social and nationalist revolution.

ELANGOVAN: Social revolution. And people also find, I don’t want to say excuses, but they try to explain it, let’s say, by saying, “Oh, it’s accommodation. There was so much diversity, so people had to be accommodated and compromised.” But through it all, this is a very strong—for me, something that I do care deeply about is this whole question of sedition. How sedition is invoked for—a comedian is accused of sedition.

RAJAGOPALAN: It has no place in a civilized constitutional republic. It’s shocking we carried this colonial legacy forward.

ELANGOVAN: I don’t know. That is made only possible because of this authoritarian nature of the document, which has been made authoritarian by successive governments, not just this one but in the postcolonial period.

RAJAGOPALAN: I think the Modi government, in all its excess, is a continuation of previous governments in India.

ELANGOVAN: Absolutely.

Federalism

RAJAGOPALAN: In some of my work, I have characterized India’s federal system as a centripetal federal system—very, very high degrees of power with the union government and the union executive and parliament. In his book, Madhav Khosla talked about the need that the framers felt to centralize power to fight localism and parochialism. That’s the way he has set it up.

From your book, I sense that some of this may actually come from colonial history of politics, which is basically the tussle between the interests of the imperial government and the interests of the provincial governments through the Government of India Act (1935). These are some of the tensions that B.N. Rau is trying to resolve. Did he also inadvertently pass them on as baggage into the modern version of the Indian Constitution?

ELANGOVAN: If we take the big picture out and the standard narrative relating to the 1935 act—there’s one narrative, as we know, which just talks about devolution. The 1935 act happened with all its associated problems, but at the end of the day, it was considered as a template for the making of the Indian Constitution in 1947-’50.

Now, what I found interesting when I was looking at Rau, though—and here, it may be useful to also think about the source from where this material comes from. Because this comes from the Reforms Office files, which, to the best of my knowledge, has not been used in this regard, with respect to the 1935 act. I was actually surprised when I first saw these files, because here was Rau making all these interventions about the 1935 act. He was in charge of basically translating the policy of the 1935 act into actual legislation, like statute revision, but then he was making his own interventions.

This process seemed to not be independent of the larger political process, the larger political history that was at work. To me, that became more interesting than the nitty gritty of the 1935 act, which, of course, is very interesting in its own ways. If I can abstract that a little bit more and frame the overall project where I see the way Rau fits in and the way, perhaps, we should begin thinking about the Indian Constitution in new ways, there is a two-fold separation that needs to be made. This is relevant to the 1935 act as well.

One way to look at it is really to look at the utilitarian, functional aspects of the 1935 act. That’s where questions of federalism become important. That’s where questions of provincial autonomy and—where does the power reside? Does it reside with the federal government? Does it reside with the provincial government, et cetera?

What I found in Rau is, there is another dynamic that is at work that is opened up when we look at these files and we look at this material, where the interests of the colonial government, the interests of the nationalists and people like the bureaucrats like Rau who are caught in between, they are working in a slightly different terrain, which is different from the strict constitutional terrain. That terrain is, for me, where the political and the constitutional intersect, which is beyond the utilitarian aspect of constitutionalism. I find that a number of works on the constitution tend to focus on the utilitarian aspects, but we have somehow forgotten this much more foundational terrain in which the logic of constitutionalism was unfolding.

That’s where I fully agree with you, where this colonial history—with all its power dynamics—is playing its role in constitutionalism, and Rau is someone who was actually part of that dynamic. He’s responding to that. His writings reflect an engagement with the colonial state, challenging the colonial state on their own understanding of constitutionalism. But he’s equally not very happy with the nationalists either. He is actually somewhat critical of them too. That’s where his work fits in. It’s that terrain of colonial politics. It’s also the terrain that is somewhat forgotten.

B.N. Rau as Architect of Federalism?

RAJAGOPALAN: No, I absolutely agree with you. It is certainly somewhat forgotten. But what I find very interesting is, if B.N. Rau hadn’t operationalized the 1935 act through his work on statutory interpretation in the Reforms Office, the nationalists, the anti-colonialists might have just thrown the whole thing out. I’m thinking of a counterfactual. The assembly never references it as an important document administratively or constitutionally with any symbolic or actual value, and they say, “You know what? We’re going to rewrite the administrative structure of the Indian state.” And then they do it as they do it.

The very fact that B.N. Rau was able to operationalize this particular act, with all its flaws and contradictions and tensions—he made it work, and he made it work for a good 11 years before the Constituent Assembly comes into place.

It seems to me like he is, in fact, the architect of Indian federalism as we know it today. We usually credit Indian federalism to Sardar Patel and V.P. Menon, their work on transfer of power. We think of Indian federalism and the union of states from a very different point of view, but your book made me think of it as, if he hadn’t operationalized the Government of India Act, the whole way we conceive of a federation would be different.

ELANGOVAN: I would agree with that partly. I say partly because, again, Rau was just one of the people working in the Reforms Office. Although he was an important person, he was the officer on special duty. They actually bring him into the Reforms Office to do this job, but as we also see, when he starts writing his initial memorandums and his basic framework, as it were, the way he thinks the interpretation should happen, it goes to the India Office. And they are immediately not happy with it because they are very nervous.

Then India Office gets involved in this process very heavily, and then they send their own guy to oversee this process. To that extent, yes. Would the 1935 act have been operationalized without Rau? I think it could have because V.P. Menon was also working in the Reforms Office at the same time. The British government had eventually a big say in how the laws have to be translated to suit the 1935 act. But here’s the thing—and that was the hidden part of the story, in the way Rau operationalized it, though it suddenly became possible for that legislation to potentially speak to the dominion status that India could have gotten.

Now with hindsight, we know it also spoke to the postcolonial moment. For me, what was fascinating was Rau was able to envision sovereignty, envision federalism too from within a very colonial legislation. The way he read it and the way he translated it, the way he transformed it, certainly an oppressive colonial legislation, but comes to ground for autonomy, for freedom and, eventually, post-coloniality.

There, I would say, yes. In that sense, Rau certainly plays a huge role in making us envision that. On the other side, yes, could the government still have done it? Yes, the 1935 act would have still happened in the way it did, but we wouldn’t have had that envisioning.

RAJAGOPALAN: Yes. It’s a constitutional imagination that he brings to the 1935 act. Without that constitutional imagination, it’s just one more piece of legislation that the colonial government is imposing on its “subjects.” It’s creating these elected positions, but those elected positions don’t have much autonomy. All this is actually brought about through this massive exchange of memos and letters with the India Office. I think there’s something quite lovely that you’ve brought out, which is we like to romanticize the constitutional moments. What is hidden in all the romance is that it is a very long, drawn-out process of negotiation. Right?

ELANGOVAN: Yes.

RAJAGOPALAN: You need emissaries who can understand detail and who can understand language, but also have imagination through that negotiation process without which the whole cookie crumbles. That is an incredible aspect of both B.N. Rau’s personality and this entire constitutional process that you brought about.

Rau’s Impartiality

RAJAGOPALAN: There are a few very interesting character traits of B.N. Rau, right? The most important character trait, as you point out, is this impartiality. Whether it is religious or caste or partisan interest, he tries to hold himself separate from the specifics of the case, especially during the negotiation. He relies a lot on procedural fairness.

Why is our constitution so poor, procedurally? Why is it so easy to amend the Indian Constitution, for instance? Or why is the procedure to appoint judges not clearer? It’s been a source of problem and pain for 70 years, and now we basically tossed out the procedure in the constitution and are using something completely different. For a constitutional adviser who was so procedurally sound, do you have a story for why our procedures are so poor?

ELANGOVAN: I’m trying to think what Rau would say to this because again, one thing to remember is Rau left the Constituent Assembly in—

RAJAGOPALAN: Yes, he did.

ELANGOVAN: —1948, I think. He goes to the U.N. Then he’s like, “I’m done with this. I’ve done what I needed to do.” He goes. One thing we do know from the evidence that I’ve seen is, Rau was not at all happy with all the whips that were being issued. It is clear from Rau’s own evidence that he was seeing clearly a party perspective that is taking over the Constituent Assembly. That was already happening. Above all, though, for this we need to go beyond the constitution or the Constituent Assembly itself. It’s really that lack of distrust, but it is also—the question really became in whom should the power be vested and which branch of the government should wield the power?

That question of power was never really challenged in the constitutional process. Ornit Shani has the whole book titled, “How Did India Become Democratic?” which, of course, is a different story. But did we really have a democratization of power, understood in its raw sense, to influence and fundamentally alter the power relation to society? That never happened. I find it interesting here, for instance, that Nehru hardly plays an important role in the Constituent Assembly.

RAJAGOPALAN: He just comes to some subcommittee meetings and issues some diktats when things are very problematic and leaves.

ELANGOVAN: He comes, he makes some speeches. Of course, the understanding is, one, he’s running the government, so he’s busy. Second is, he knows Patel is there and the elite Congress leadership is there and that they’re not going to do anything that is going to completely prevent his ability to do what he thinks the government should be doing. To that extent, I think that whole idea of democratization of power—and this is the story of Indian constitutionalism—that does not happen.

RAJAGOPALAN: You see it in bits and pieces. Rohit De has talked about it, that people take this document and they run with it. They start finding their rights and restitutions located in the document, and that is how they are negotiating the power structure. On the other hand, in Ornit Shani’s book, we find how people very easily and quickly take to the voting process, which is not the only thing. Democracy and democratic processes are much bigger than just episodic voting, but that’s an important part of it. You’re absolutely right. We can see glimpses of this.

This is also there in Rau, where you talk about how there is a very clear point within the Constituent Assembly where we’re talking about, if you have individual rights, they need to be enforceable. Now, who’s going to enforce them? What kind of judiciary is going to enforce them? There’s a big question of the design of the judiciary, and the federal court system is not sufficient because in the British system, the parliament is sovereign.

Whereas in Ambedkar’s vision, you have to have an independent judiciary, which is very much Marbury v. Madison kind of independent judiciary review. Rau is very much on the legislative side of things in this. I don’t know if it comes from the Government of India Act, or where this is coming from, but Rau feels that the legislature should be sovereign, and each and every question needs to be negotiated within a democratically elected legislature.

It can’t be left to people who are not democratically elected, and they get to be the custodians of the constitution simply by power of interpretation. Do you think that’s one of the reasons the source of democratic power got compromised, oddly enough, in this attempt to create separation of powers, which is also very important, but something seems to have been lost in the process in India?

ELANGOVAN: I think so. Again, here, of course, the legal scholars will have much more to say about the separation of powers and the whole dynamic between Nehru and the judges. I know I’ve talked to friends who say, Vikram Raghavan, who was—

RAJAGOPALAN: He has a wonderful chapter on this.

ELANGOVAN: He and I have had conversations about this, and he told me actually that initially, the judges were very reluctant to quote the Constituent Assembly debates because they did not trust the politicians. Then the state also responded, as you have documented. The state responds to every time the court was trying to—what the government perceived as undermining its policy—the state would come up with the legislation and say, “This is what we are now going to do.” I think Rau would agree on this too.

Again, thinking about it from Rau’s point of view, it was very clear to him that what was going to be created in 1950 was this heavily centralized kind of a nationalist state, even though it’s not, in that sense, a nationalist state. To that extent, decisions are going to be made that are going to be reflective of the way power was going to be understood and who wielded that power.

Now, this is something I see, even in Rau’s brother, Shiva Rao. He gave a speech, and I want to say in the 1970s, just before his death—late ’60s or early ’70s—he gives a speech, and he talks about the history of the Indian National Congress. It’s actually not a happy history after 1950.

He actually documents how so many of the decisions were made by foregrounding the interest of the political party, rather than something else. He says that that’s not the way that the party can flourish, and that’s not what was envisioned at the time of decolonization. That is something that even somebody like Shiva Rao talks about, and he’s an ardent Congressee, he was. I’m sure other observers and commentators saw it at that time.

Politicians vs. Bureaucrats

RAJAGOPALAN: This actually, again, brings me back to an important characteristic of B.N. Rau. We were talking about his impartiality. Now, he’s of course impartial because he is a bureaucrat. He has his interest, which is that the state machinery needs to run and it needs to have its power located in the state. Aside from that, he has no defining particular interest.

You look at any kind of constitution-making process, and everyone requires that for legitimacy, elected officials who are representatives of the people should be writing the constitution. No matter how good a bureaucrat or a group of bureaucrats, you can’t imagine people saying a document written perfectly entirely by unelected bureaucrats is going to be the document thereafter. To this extent, every kind of constitution-making process, by definition, has to have some politicians who are self-interested, who have skin in the game, but who are also partisan. Your book also shows that tension.

Right now, what you said just now about Shiva Rao, this is coming back to the fore. You have politicians writing a constitution, you’re going to get a political document. You have bureaucrats writing a constitution, you’re going to get a technical document. But that technical document, even if it has fewer contradictions, is not going to have legitimacy. That is another fundamental tension in how we think about constitutions, not just the Indian, but pretty much any constitution.

ELANGOVAN: Right, right. In that sense, Rau’s position was unique because his legitimacy to a great extent derived from the legitimacy of the colonial state. That takes us to an interesting question. What does legitimacy look like in the postcolonial period? Is legitimacy to be tied only to elections and elected officials? Can somebody like Rau exist today? Maybe there are people like Rau. It’s entirely possible that there are people like Rau today, but they will not have the same status and they will not have the same voice in the contemporary moment because the voice of politics would completely drown them out.

I think Rau’s position was greatly derived from—it was a very unique moment, in that sense, in the late ’40s. Certainly, he was a star and people trusted him. Nehru trusted him, Jinnah trusted him. The princely states trusted him. The colonial officials trusted him. Wavell is a classic example.

RAJAGOPALAN: Of course. We are seeing this over and over again. Right now there seems to be this big backlash against elites and our technical expertise and so on. You see this most clearly playing out with what’s happening in the Reserve Bank of India, for example. You have really good economists who are resigning and leaving because the government simply won’t take their advice. That’s another example of people with technical expertise and bureaucrats trying to tie the hands of the government when it comes to fiscal spending and fiscal dominance.

It’s a different tying of hands, but in principle the same thing. And people just won’t have it and elected politicians won’t have it and now they want to have their own guy. Even in an area such as being the governor of the Reserve Bank of India, which is such a technical job, if we can’t tolerate technical experts, I shudder to imagine what would happen with the constitution-making today. Maybe it’s best.

ELANGOVAN: You would remember, of course, the late ’90s debate when the first NDA government wanted to change the constitution. There was a whole—

RAJAGOPALAN: They set up a committee and the committee said, “Don’t touch it.”

ELANGOVAN: It would be fraught. It would be very fraught.

RAJAGOPALAN: It will be fraught. And then there is the fundamental question of who gets to be in the Constituent Assembly to begin with. Then, there’s going to be power scrambles at multiple levels. The very first one is what is the Constituent Assembly body. In today’s politics and the way we run elections, compromising the Election Commission of India, electoral bonds, the judiciary having a very minimal voice when it comes to checking power—it could just very quickly become a majoritarian exercise. Which kind of majoritarian exercise, whether it’s religion, whether it’s caste, whether it’s gender is, of course, a whole separate matter. It could very quickly devolve into one.

Research and Writing Process

RAJAGOPALAN: I have some questions about your process, if you would permit me a last question which is not about the book. We have a lot of graduate students who tune in. What is your writing process, and how does one go about researching a book like this?

ELANGOVAN: Again, this book evolved from the Ph.D., of course. One was entirely accidental, serendipitous, just because initially, I did not, of course, know how to problematize the project. Again, one thing I did not want—actually, two things I did not want to do. One was, I did not want to write a biography of Rau because I just felt it would be a very different project. That was not something that I was interested in. Second, I did not want to write “Rau and the Making of the Indian Constitution,” which is why the subtitle is: “Rau in the Making of the Indian Constitution.” I did not want to write yet another story of how great this person’s contribution was to the making of the document, because that seemed like a very conventional story.

It was really until I saw the Reforms Office files. I would say the first thing was really to come across some material that can give you a very different perspective on whatever you want to. For me, reading the Reforms Office files was a revelation because it was very clear that there was a tension at work. Once it was clear that there was a tension at work in 1935, it seemed to me that, okay, there’s going to be tension everywhere, then. Then I had to just expand on that. For me, really, the book took shape from that 1935 moment.

RAJAGOPALAN: I have a follow-up question here. I was going to ask you at some point, why not any of the other bureaucrats or technical experts? Why is this not told through the lens of say, Alladi Krishnaswamy Iyer or Gopalaswami Ayyangar or Ambedkar or Prasad or V.P. Menon? Why Rau, was going to be one of my questions. But it seems like it’s because of his work in the Reforms Office. Is that the answer to that question, that it’s told through the eyes of Rau because you found the Reforms Office files? Or was Rau the reason you went looking for those files in the first place?

ELANGOVAN: I would say it’s because of the Reforms Office files, because in the Reforms Office files, I also found V.P. Menon’s work there. I forget the exact position he occupied, but Rau was the chief person and V.P. Menon was one of the other bureaucrats working.

Many of the things that V.P Menon was doing was basically at the bidding of somebody else. It wasn’t very clear what his ideas were. Then Gopalaswami Ayyangar, again—I looked at his papers in the context of this, although I didn’t use much of it. It seemed like he was very closely tied in with Nehru, and he was very closely tied in with the nationalist project in some ways.

Nehru suddenly liked Ayyangar more than perhaps he liked Rau, which is entirely possible. To me, that’s what I wanted to do, which is, one, I wanted to problematize the making of the story of the making of the Indian Constitution. Two, when I found these Reforms Office files, it seemed like, okay, here’s a story that can be told. Then when I extrapolated it to the ’40s, it became clear that, okay, Rau was actually revealing a different side to the story than what Austin told us what happened.

RAJAGOPALAN: You know that Austin story is so interesting, that that became the dominant narrative. Of course, the story is similar to what you just told us about the Reforms Office files. Austin came upon the RP papers, which are now in the national archives, and because he was the first person to get this treasure trove of documents, he told the story in a particular way.

Of course, the story is told through a particular lens of the people who were the nationalist leaders of that time. Were you worried about that while you were writing this, that you are essentially looking at this problem through the eyes of a colonial bureaucrat and that might color the project for you at all, or that was not a worry?

ELANGOVAN: That concern was certainly there, but given that I found that Rau was somebody who did not really—and to put it very simplistically here—he did not really buy into the colonial project. He did not really buy into the nationalist project. He found a way to make the colonial legislations work in a still-budding postcolonial state. He found a way to do that, which, to me, was fascinating. Some of his writings, his actual files writings, it’s so clear and it’s so logical and it is so empathetic as well.

That is what I found very interesting that, okay, here was a person who was really struggling with all these issues that others were struggling with too at this time, but he was not a politician. He was a bureaucrat, but he found a way to make himself at home in that atmosphere. In the process, for me, he became a window to see the way politics unfolded around constitutionalism. To that extent, that was a very interesting process.

How to Write About the Constitution

RAJAGOPALAN: How does a project like this come about for anyone attempting something like this? I have tried to look at different aspects of the constitution at various points. And you know how lengthy the literature is—not just books that have been written about the constitution, but the original debates, whether you look at all of Shiva Rao’s volumes.

Now, you are taking us back 15 years to the Government of India Act. For scholars who are working on the constitution, what is a good way to think about the project, and what is a good way to start writing about any aspect of the constitution? What would you tell your graduate students?

ELANGOVAN: I would, again, begin not from the constitution, but I would actually begin—to me, that was influential—to me, subaltern studies and postcolonial theory were very influential. One thing that I was particularly struck by both the subaltern studies project and the postcolonial studies project was really how they thought about power, and how they explained how colonial power works, and how power is embedded in an idea like nationalism, and how so much power is embedded in law and in the relationship between law and society.

That really helped me a lot eventually, when I was thinking about this book and even afterward. To me, that was really the starting point. I would say if somebody is thinking about the constitution, think really hard about what is it that is exciting you about the constitution? Again, as we said right at the beginning, is it the tools of the constitution? You just want to look at federalism, or you want to look at individual rights, directive principles, state’s rights? Are you interested in the bigger story within which constitution is a part of that story? What story are you interested in? I think reading theoretical literature certainly helps. It’s really helped me because that theoretical literature really, for me, provided a way out.

Otherwise, I was constantly in the Austinian mode or—it’s a very specific mode. Secularism, for instance. People have written tons of books on secularism. If my task is only to think about secularism, then yes, that’s a different story. Their constitution merely becomes a backdrop for something like, how did they discuss secularism in the Constituent Assembly? That becomes the question. For me, the more exciting part is, the foundational story of the Indian Constitution is yet to be told authoritatively.

RAJAGOPALAN: Maybe that’s for the best. We don’t want a single authoritative text here.

ELANGOVAN: Exactly. That’s what I was going to say, that what we really need is to pluralize the story of the Indian Constitution. There are many stories to be told. To that extent, I would say, yes—graduate students, if they are interested in this, then they’ll have to think about what is the story that they want to talk about and then maybe read some theoretical literature that will help them in that. One thing, try to question the classic framework.

RAJAGOPALAN: No, I agree with you. There was a time when everything was written in a language that was necessarily a colonial language. Now I see a big pushback. Sometimes it’s excessive; sometimes it’s just right on decolonizing the language through which we talk about these kinds of issues. Again, the first three, four decades in India are all about nation-building. Once it becomes clear that India is not going to break apart, which was a very big concern in the first 15, 20 years, we start stepping away from this whole single-union nationalist fervor and people actually start asking serious questions about certain aspects of the constitution.

I think even what is written about the constitution is so telling about the time in which it’s written. I think you are much more likely to get a book like the authoritarian constitution, the one that you are recommending that we write, during the Modi years. Maybe this wouldn’t have come about at a different time, but the very fact that now we’re seeing maybe there’s something really wrong with the constitutional document, and it’s centralizing too much power, maybe this can only be written at a time with Indira Gandhi or Modi or something like that. I think it’s both the time and the language in which it’s written.

Of course, what you said about pluralism, which is just so critically important—I see a revival now on constitutional work from different perspectives, whether it’s anthropologists, historians, constitutional scholars. I think “The Oxford Handbook of the Indian Constitution” did a very nice job of bringing a lot of different people working on different points of view together in one place at a point in time. It’s not perfect. It’s a work in progress, but it was a good start. I do think there’s a revival of constitutional studies in India.

ELANGOVAN: Oh, definitely. In fact—and Rohit had told me this too—there’s a lot of people who have been writing about the constitution even in the last 10 years, I would say, which is really great. I would also just additionally recommend that, even as we’re thinking about the constitution, to think about the constitution in its political terms as well. Otherwise, I think we miss out on the story.

RAJAGOPALAN: Agreed. No, and I think Kothari has some nice work on looking at it from a political lens. You’re right. There are some people who’ve done work on this, but we’ve always thought of constitutionalism in India as a post-1915 moment and through a judicial review lens. That has been the dominant narrative on constitutionalism in India. You’re right that we need to pay attention to the politics, to the negotiation, to the conflicts, which are inherent.

Subhash Kashyap is one of the few people who has spoken on some of the politics of how legislation is made or the procedures are followed or constitutions are written. That’s, I think, modern day, another person who’s been focused a little bit on that.

Process and Future Projects

RAJAGOPALAN: Do you write every day? What’s the writing process?

ELANGOVAN: Certainly not every day. Although I wish I could write every day. For me, it takes a while to get the initial first couple of pages, but after that it goes very fast. And I think a lot about the title; I don’t know if that’s something I should change. But for me, the title is so important. I think a lot about the title because for me, that title frames my writing, frames my essay or chapter, whatever it is. Then the first couple of paragraphs undergoes multiple revisions, multiple changes. Then at some point, it feels right.

Then, somehow the rest of the essay doesn’t take that much time. It’s fast. It goes. It falls into place, but it’s really the initial, the beginning, the initial first couple of pages that’s really—sometimes it can take weeks, but once it’s there, then everything else comes together.

RAJAGOPALAN: What’s the next project you’re working on?

ELANGOVAN: It would be related to the constitution. I’m thinking of writing a broad 20th-century history—I would say long 20th century, maybe begin in the late 19th, then come up to early 21st—of really the story of the minorities and the Indian Constitution.

Something we spoke about earlier in the discussion, which is, there is a history to minority engagement with the constitution. And people have already written about this. So Mitra Sharafi’s work, for instance.

RAJAGOPALAN: That’s great.

ELANGOVAN: It’s a classic work. Nandini Chatterjee’s first book, I think, was also talking about this. Rohit De’s book also talks about the way people engage with the constitution. Again, I don’t want to just talk about that aspect of it; that will be one aspect. Also, to really document the story of the constitution, certainly not as an elite document, but certainly not as a people’s document either. As a document that has been evanescent in the Indian political space, to which people have always referred to and engaged with and fought with, and succeeded and failed, et cetera.

It’s really to see how ultimately, it’s still a document that one can engage with and one needs to engage with, but with certain understandings in place. Let’s not approach the constitution as a resolution for all our problems. That’s not going to happen. Equally, we cannot reject the constitution. That is also not a viable option. It’s there somewhere in the middle. For me, I see it as a project of exploring the nature of the constitution, but from a different point of view.

RAJAGOPALAN: I think you’re absolutely right to think of it neither as a resolved project nor as one with no legitimacy, but a snapshot of a momentary compromise. That’s usually how I think about these things. I think also here, the Motilal Nehru report and that 1928/29 draft version of the constitution, there it becomes so clear that when you don’t include minorities, or the minorities have not joined the negotiations, the whole thing collapses.

Second, I’m very interested in reading your project because the moment we talk about minority rights, there’s this assumption that there’s the majority and then all minorities are equal, which is simply not the case in India.

ELANGOVAN: Which is just not true.

RAJAGOPALAN: It’s not even about numbers. Some of it has to do with numbers, but if we look at something like Adivasis as a minority, that’s treated so differently than any religious minority or any caste-related minority. Gender is not a minority, but it’s still the largest minority. There’s so many different ways of thinking about negotiating this. I’m very excited that you’re working on this and that this is your next project.

Pandemic Viewing

RAJAGOPALAN: One last question before I let you go, and the most important question: What have you been binge-watching through the pandemic?

ELANGOVAN: Oh, through the pandemic. Gosh. I’m trying to think. I’ve watched a lot of movies, obviously. I’m mostly more of a movie person. I’ve just been watching a lot of Netflix movies.

RAJAGOPALAN: Do you have some recommendations?

ELANGOVAN: Most recently, of course on Amazon, I don’t know, have you already seen this: Jai Bhim?

RAJAGOPALAN: Yes, it’s fantastic.

ELANGOVAN: I was stunned when I saw the movie.

RAJAGOPALAN: I was stunned.

ELANGOVAN: It was absolutely fantastic. I started watching—and, in fact, this again comes back to the constitution in a weird way. It’s a paper I’m working on, but I don’t want to say anything about it. I started watching a lot of ’70s movies—Hindi movies—and early ’80s. I began to think that, okay, there could potentially be a project on the way the state appears in these ’70s and early ’80s movies, especially after the Emergency, so in the way some of the movies reference the Emergency and so on. During the pandemic, I was watching a lot of those old—“Golmaal” is one of them, and all Amol Palekar’s movies I was watching from the ’70s.

RAJAGOPALAN: “Golmaal” has some snide references to the Emergency. It’s quite nice.

ELANGOVAN: It is. I was watching that. That I was watching quite a lot, actually. Of course, I was revisiting the Ray movies because I like that too.

RAJAGOPALAN: On the ’70s and ’80s movies, there was a dissertation I read by Nimish Adhia. He’s a scholar in, I think, Manhattanville College in New York. He’s an economist. He wrote about how the perception of capitalists was changing in India and through movie protagonists.

ELANGOVAN: Oh, that’s interesting.

RAJAGOPALAN: Earlier the capitalist was a black marketeer and a villain, and then it slowly changed, and in modern-day movies how the capitalist is much more—if not revered, but kind of the hero of the movie in a way there was always the villain. Maybe the dissertation has some interesting movie references for you. That’s a different project than the one about the state.

ELANGOVAN: Absolutely. Another thing that I watch a lot, of course, on YouTube is Tamil comedies.

RAJAGOPALAN: Oh, tell me more. Is this Crazy Mohan and that kind of vein?

ELANGOVAN: My favorite is Vadivelu.

RAJAGOPALAN: Oh, Vadivelu.

ELANGOVAN: He is my absolute favorite. What is interesting to me is I try to find scholarly work on this. Do you know of any? I have not come across any.

RAJAGOPALAN: All my reading of Tamil work is in translation. I don’t know what the Tamilians are saying about Vadivelu or Crazy Mohan or any of those people, but I can certainly ask around, but I haven’t seen much in English on them.

ELANGOVAN: I did basic JStor search. I’ve looked at Amazon to see if anybody has written something around this, because Vadivelu deserves a whole book. In fact, he deserves multiple books. I find his comedy so piercing.

RAJAGOPALAN: It’s piercing.

ELANGOVAN: It is so sharp, it is unbelievable.

RAJAGOPALAN: I need to watch more of Vadivelu, to be honest. Most of my Tamil comedy upbringing was Crazy Mohan tapes or stage plays. The troupe would come to Delhi and perform in Tamil Sangam or something like that. I haven’t heard too much of the contemporary stuff. I saw on Amazon some Tamil comedians coming up. I can’t remember the name of the show, but it was three or four Tamil comedians competing for a best comic prize sort of thing. I found the comedy very, very, very sharp.

ELANGOVAN: If graduate students are listening, here’s a project for anybody, and I would love to read the project. The question of color in Tamil cinema is huge. I don’t think I’ll ever be able to do it, even though I would love to do it. If somebody wants to do it, again—

RAJAGOPALAN: I’m surprised there’s nothing on it.

ELANGOVAN: That’s the thing. Color plays such—

RAJAGOPALAN: Such a big role.

ELANGOVAN: All these comedians like Senthil, Goundamani, even before that Nagesh and then Vadivelu and then Santhanam and nowadays, I don’t know who’s the—oh, Vivek; sadly, he passed on. Through all these 30, 40 years of Tamil comedy, color plays a huge role as an insight into Tamil society and culture.

RAJAGOPALAN: Color also as a proxy for caste, very often. It is perceived to have a lot to do with color. The twice-born is fair-skinned, whether they’re actually fair-skinned or not.

ELANGOVAN: Absolutely. In a way, the movies negotiate dignity and humiliation in the way it negotiates, of course, hero and the sidekick. But the contrast is so clear that it’s unbelievable. That has happened in the last 30 to 40 years. That’s been an endemic feature of Tamil cinema.

RAJAGOPALAN: You know the sidekick is the one who is humiliated the most in one sense with the colorism and the fat-shaming. You know all the typical Indian tropes in Tamil cinema. Also, the sidekick is the only one with the truth-telling voice, with the piercing jokes and the piercing humor. There is something very interesting going on there. I’m surprised to learn that there isn’t much written on it. I just assumed I haven’t read it.

ELANGOVAN: All of Goundamani’s lines are really truth-telling. So is Sendhil, but it’s more Goundamani who provides that commentary on the society. Vadivelu, it’s all about humiliation and humiliation as a way to make us realize the absurdity of these kinds of problems.

RAJAGOPALAN: And power structures, right?

ELANGOVAN: And power structures. The fact that he keeps getting beaten up, which in itself I think deserves an essay at least. Why is it that Vadivelu keeps getting beaten up, and why is it that people laugh at it? There’s a whole set of projects to be done there.

RAJAGOPALAN: Oh, wow. I hope you write something on it because you’ve looked at this quite carefully. So at least I would love to read a paper from you [crosstalk].

ELANGOVAN: I would at least like to write one essay on Tamil comedy because I’ve enjoyed it so much. But at the same time, there is a problematic aspect to the enjoyment. Color in Tamil cinema is something that needs to be written. I should talk to Chalapathi at some point and ask him. He may, because he’s the person to ask about cultural history, I guess. He will know this.

RAJAGOPALAN: Anyone who’s listening, if they have any ideas, you can always email Arvind and let him know the answer to some of these questions.

ELANGOVAN: Absolutely.

RAJAGOPALAN: Thank you so much, Arvind, for doing this. This was such a pleasure. And the book is fantastic, and I can’t wait to read more.

ELANGOVAN: Thank you so much. For me, this was a great opportunity to talk about the book in a very different setting. Of course, I’ve been talking about this to others who have been working, and my adviser and fellow graduate students. But talking to you, actually, you’ve given me a lot to think about, and I’ve taken notes.

RAJAGOPALAN: Likewise.

ELANGOVAN: This is great. Thank you so much for the opportunity and for the invitation.

RAJAGOPALAN: Thank you.

Thanks for listening to Ideas of India. If you enjoy this podcast, please help us grow by sharing with like-minded friends. You can connect with me on Twitter @srajagopalan.

In the next episode of Ideas of India, I speak with Shrayana Bhattacharya about her book, “Desperately Seeking Shah Rukh: India’s Lonely Young Women and the Search for Intimacy and Independence.” Also check out our new initiative commemorating 30 years of India’s market reforms at the1991project.com.

Shruti Rajagopalan

Shruti Rajagopalan is Senior Research Fellow at the Mercatus Center and a Fellow at the Classical Liberal Institute at New York University School of Law.

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