Constitutional journeys: critical appraisals

Sarbani Sen

Sarbani Sen is Professor of Law and Executive Director of the Centre for Constitutional Law Studies at Jindal Global Law School, Delhi

In his essay, Theunis Roux identifies an important challenge to democratic constitutionalism and one that increasingly appears to jeopardize the democratic constitutional project not only in countries such as India and South Africa but in other countries of the Global South and former colonies. It also speaks to comparative constitutional law scholarship and incorporates a very cogent dialogue about the cultural relativity of migrating constitutional ideas, and the possibility of these ideas to meaningfully inform societies with very different socioeconomic and political contexts, and the possibility of the latter to adopt, reject, and modify such ideas to generate their own constitutional traditions.

The essay states that each narrative is the other’s most demanding interlocutor – the bearer of an opposing truth that is capable of exposing its blind spots and convenient omissions. Hence the hitherto dominant liberal progressive narrative (LPN) needs to enter into dialogue with and seriously address the challenge of its principal opponent, the culturalist grand narrative (CGN). The essay sets out the dominant characteristics of both grand narratives and engages them in an imaginary conversation. Roux sets out the decolonial critique (embodied by the CGN) which views postcolonial constitutions, even though adopted by a broadly representative constitution-making body, as reinforcing “‘the colonial matrix of power’ – the interconnected web of oppressive power relations that prevailed under colonialism” (at 6). Hence, according to the CGN, rather than being remarkable achievements in revolutionary/transformative constitutionalism, the Indian and South African Constitutions, in their articulation of the conceptual vocabulary of liberal constitutionalism, have led to ‘epistemicide’.  According to this view, the LPN has suppressed the reassertion of indigenous ways of being and prioritized the interests of the Westernized political elite that rose to prominence under colonial rule. For the CGN, on the other hand, the anti-colonial struggle was about asserting the dignity and worth of a denigrated culture, with its own unique approach to governance.

While it is true that the LPN can be subjected to criticism, my question would be whether decolonial CGN critiques really rise to the level of a coherent and substantive contemporary counter grand narrative to the LPN, at least in the context of India. Below, I set out some of my reasons for raising this question.

(1) Historically, as Roux himself notes, the critique of westernized liberal democratic constitutionalism was already articulated as part of ongoing debates among the Congress party from the late nineteenth century as they struggled to meet the challenges that British imperialism posed for Indian society. Various strands of thought were expressed and debated. Unlike “Moderate” Congressmen, who valorized the principles of English constitutionalism, the “Extremists” traced the source of corruption of British liberal constitutional principles as applied to India to imperialist rule and laid bare its premises. They also did not feel that “borrowing” of English principles of parliamentary government and trying to “transplant” it onto Indian soil would work. B.C. Pal, Tilak, Lajpat Rai and Sri Aurobindo in their writings expressed the idea that “the countenance of foreign predominance … in any shape or form, political, industrial, intellectual … is fatal to the continuance and growth of self conscious life among a people subject to overlordship” (‘The Essence of the New Movement: The Extremist Position Defined’, Bande Mataram (10 April 1907)). B.C. Pal also declared “… what may be called neo Hinduism has been seeking to realize the old spiritual ideals of the race, not through ... negations or abstractions, but by the idealization and spiritualization of the concrete contents and actual relations of life ...” (B.C. Pal, ‘Writings and Speeches’ (Calcutta, Yugayatri Prakasan Ltd, 1954) 12-13). There were attempts to understand popular religious traditions and mass culture and to redefine traditional myths in order to redirect the goals of Indian society. Congressmen postulated “swaraj” as a goal in their attempts to describe through an indigenous concept their ideas of complete and early self-government from British rule. Gandhian thinking also reflected this need to break from English political thought and its principles of economic progress. Gandhi understood “swaraj” to mean organizing social and political life so as to “keep intact the genius of our [Indian] civilization” and this led to his organizing strategies of political protest that reflected Indian needs and traditions.

Critiques of the ‘economic drain’ of imperial rule and responses to the denigration of indigenous cultural and religious traditions in the form of various social and religious reformist movements emerged as part of the anti-colonial discourse. Thus, economic and social problems, and the need for a transformation of existing social and economic power relations/structures, was voiced within the anti-colonial movement and the Congress party forum. Even proponents of liberal democratic principles within Congress, such as Ambedkar, expressed their discontent with Congress’ approach to issues of caste and the untouchables. Socialist/Marxist viewpoints were also an important part of nationalist debates and thought – Nehru was the primary Socialist spokesperson within the Congress, and Marxists had a love-hate relationship with the Congress. (Note that some scholars have asserted that large sections of the Indian people were outside the influence of the Congress party, and struggled in their own way against British imperialism under the Communist party or regional transient political organizations: see, for example, Sumanto  Banerjee). These various strands of thought were articulated and debated within the mainstream nationalist movement, along with liberal democratic constitutionalism, during the course of the nationalist struggle.

Proponents of liberal democratic constitutionalism and a westernized modern nation state such as Nehru were thus aware of, and had to meet, these ideological challenges and to try to find a common ground for a ‘joint popular front’ to emerge against imperialism. Nehru stated: “The real problem for us is how in our struggle for independence we can join together all the anti imperialist forces in the country, how we can make a broad front of our mass elements with the great majority of the middle classes which stands for independence … the essence of a joint popular front must be uncompromising opposition to imperialism, and the strength of it must inevitably come from the active participation of the peasantry and the workers” (Jawaharlal Nehru, ‘Socialism and internationalism’, Presidential address at the Indian National Congress, Lucknow, 1939).

In view of the articulation and ongoing debate between various intellectual strands during the anti-colonial movement right up to the drafting of the Indian Constitution, can it be asserted – as the CGN does – that the emergence of the LPN as the dominant strand necessarily meant “delegitimating indigenous forms of knowledge and ways of being” and that, consequently, postcolonial constitutions on the liberal-democratic model simply prolonged the colonial process of “epistemicide” – the destruction of indigenous knowledge systems and their denigration in favor of Western forms of rationality? As Roux himself says through his LPN narrator (at 46): “You simply assume that because the Indian and South African Constitutions drew on liberal constitutionalist ideas and institutions, they must necessarily be Western in their cultural orientation. But what if, in the process of drawing on those ideas and institutions, constitution-makers also had regard to indigenous values and local traditions of struggle against the abuse of power? … [W]ouldn’t it then also make more sense to think of liberal constitutionalism as having been culturally pluralised through this process, so that it is no longer apt to think of it as an exclusively Western tradition?”

(2) Despite the critiques of the LPN that the two schools of the contemporary CGN (first, Guha’s “subaltern studies” strand and second, the thinking based on the need to resurrect majoritarian Hindu values) raise in Roux’s essay (at 29-31), it is not clear from the CGN narrative what they seek to replace the political formations of liberal democratic constitutionalism with. It may be that the two schools of the contemporary CGN are useful tools to critique the LPN (as producing an elitist Constitution that was not truly autochthonous, for example) rather than sources of suggestions as to what to replace it with substantively. It is not clear what a more inclusive and less elitist process of constitution making would be and what political consensus would emerge from that process. In the case of the second school, historians may find it problematic to make anachronistic connections “between early [Hindu] representations of space, [and] geographical imaginations, and the modern nation. In other words, it is ahistorical to seamlessly project categories and concepts of the present (nation) onto older cultural categories like Bharatavarsha” and to identify a Hindu consensus on values and principles that could be the basis of indigenous political forms of governance that could replace the current Constitution. What would a thoroughly “decolonized” Constitution look like? What form of secularism would relying on the resources of India’s majoritarian Hindu tradition lead to, to better accommodate India’s religious diversity? Without any state intervention, would an internal organic process of Hinduism’s progress towards greater social equality necessarily have led to a better solution to the caste problem?

(3) There may be a disconnect in the CGN and the LPN because for the latter, the Indian Constitution was the culmination of a successful “political” revolution even without an accompanying transformation of social structures and relations. While the Congress did include questions of social and economic reorganization in their agenda, for the LPN the primary goal was to achieve a new “political” community. In the Arendtian sense, the Congress may have seen the core purpose of revolution to be the achievement of political freedom, which is the ability to participate in shaping one's political environment. The social and economic changes could then follow from decisions taken through a democratic and representative process put in place by the Constitution.

(4) The CGN also contradicts (as Roux himself describes in the dialogue between the CGN and LPN narrators) the well-documented and validated phenomenon of “migration” of constitutional ideas, especially in the second half of the twentieth century, and the theories of modern comparativists that such migration may occur without the knowledge or permission of the source jurisdiction and that (unlike previous metaphors of “borrowing” of constitutional ideas) constitutional ideas may change in the process of migration. “Migration” assumes that there is no “ownership” of the “borrowed” idea on the part of the lender, and hence no ongoing control on the part of the source constitutional order over its use by the recipient country. As Roux’s LPN narrator states (at 44): “But ideas and institutions travel, don’t they, and escape their cultural and political origins?” Talking about the practice of judicial review, the LPN narrator goes on to say (at 45): “The fact that it has been successfully institutionalised in India and South Africa shows that it is capable of travelling beyond the West. Your [CGN] approach, by contrast, would prevent this kind of cross-country borrowing and experimentation, so that every country would be locked into using its indigenous institutions for ever more.”

It is true that the Indian Constitution is not immutable and can be seen as the product of a particular political moment, and as such it can be changed to suit the emergence of new political circumstances. However, the CGN does not entirely succeed in laying down the ground rules for a legitimate process of such change to emerge or fully express what new political forms addressing the flaws of the current liberal democratic constitutionalist framework could emerge to replace it.

Sarbani Sen is Professor of Law and Executive Director of the Centre for Constitutional Law Studies at Jindal Global Law School, Delhi.

This post is part of a symposium, guest edited by Anmol Jain, responding to Theunis Roux’s article ‘Grand Narratives of Transition and the Quest for Democratic Constitutionalism in India and South Africa’

Suggested citation: Sarbani Sen, ‘Constitutional Journeys: Critical Appraisals’ IACL-AIDC Blog (20 March 2025) Constitutional journeys: critical appraisals — IACL-IADC Blog