Picture by Mukesh Parpiani
Ashoak Upadhyay
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eventy years after Independence, discussions on the state of the nation, nationhood and the State itself have one underlying belief. It is taken for granted that the Indian State as it came into being in 1947 and especially after the Constitution gave it a foundational structure, represented the aspirational culmination of the freedom struggle; a Nation-State with a philosophical system embedded in the Constitution that mirrored, gave expression to, the dreams of a people just emancipated from colonial yoke. Freedom was our birthright, the Preamble and the Directive Principles guideposts to a future Indians had only dreamt of. Why, even the icons of the nation-sate–the flag, the Asoka pillar, the chakra were iconic signifiers of the emancipatory process.
It did not seem strange then, or even later, that the freedom struggle, so momentous and historical in its grounding in non-violence and mass mobilization, should have resulted in such a bathetic outcome of a Transfer of Power?! If the freedom struggle entered modernity’s books for its unique blend of mass power and animas then so did the avuncular way in which the family silver and the keys to the estate as it were, were handed over to the servants from the sculleries. The crowning irony was that the elevation of the subjects to the position of master was blessed by the leading representative of the very sovereign that Indians had fought against.
So was 1947 the outcome of a national liberation? An Indian revolution? Many observers of independent India have commented upon the pervasive influence of the colonial raj on post-Independent government practices; the lal-batti culture, the President and the governors in states. But the assumption is these are the symbols of power too tempting for most politicians and bureaucrats to abandon. They are remnants; at the end of the day, they can be dispensed with, given some element of political will; what is important to keep in mind, so conventional wisdom goes, is that they are trimmings on an essentially Indian State, a statehood whose aspirational foundations are uniquely Indian.
That idea of a uniquely Indian state informs discourse on both sides of the political spectrum; the nationalists assume the state, a Nehruvian construct with a sham secular inflection; the left assert the state is a superstructure representing Indian capitalism and increasingly, after 1991, global, neo-liberalist policies. Both sides agree on the tainted character of the Indian state but do not doubt its epistemological break with its former colonizing master. In fact one historian traces the origins of what she calls the “Righteous Republic” to the readings of ancient texts by the “founding fathers”; never mind that in their study and incorporation of what they considered relevant to the upcoming republic, they tip-toed around the seminal influences of the Mughals on political and social formations.
Mithi Mukherjee cuts to the heart of the matter; how do we identify the nature of the Indian State? More to the point, what were its foundational principles, the epistemologies that fashioned its being as an instrument of power in a free India? As a historian she is not content to brush off the “Transfer of Power” as an accidental phrasing, a sort of logical conclusion of a non-violent freedom struggle in which the oppressor finally sees the light of day and is gracious enough to take it on the cheek and move on ruefully recognizing that the sun has finally set on the empire.
In that ‘Transfer of Power’ Mukherjee locates the imperial sovereign handing over power to a shadow of itself. In her book, India in the Shadows of Empire, the historian attempts to lay bare the founding principles of the new Indian state after 1947 as a legacy of the imperial past seemingly overturned. Her contention is that the political philosophy of the new state is no different from the philosophy of the imperial power that ruled over India since 1857.
If this is the first radical break from extant scholarship that viewed the new state as an experiment in fragmented modernity, the second is that the imperial epistemology itself grew out of a long struggle with what she calls the colonial philosophy of the East India Company, a discourse held by the likes of Warren Hastings that eventually led to the 1857 uprising. In a fascinating blow-by-blow account, Mukherjee traces the dialectics of that struggle for epistemological supremacy that eventually led to the assertion of the monarchy and a new imperial discourse of rule determined to ensure that 1857 would never happen again.
Her distinction between the ‘colonial’ and ‘imperial’ discourses is crucial to the understanding of the foundational profile of India’s post-1947 statehood. For her, the colonial discourse epitomized by the East India Company, and elaborated by Warren Hastings at his trial, underlined territorial expansion and subjugation by force of the colonized principally for commercial gain. The discourse of the ‘imperial’ was positioned as a critique of the colonial discourse’s narrow goals by reference to justice based on a de-territorialized notion of natural law that was supposed to speak on behalf of the peoples of India.
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ukherjee traces the origins of this imperial discourse by a fascinating examination of three ‘moments’ in British Indian history. The first is the impeachment trial of Warren Hastings in the last two decades of the eighteenth century that she claims Indian historians have ignored. The trial offered Edmund Burke the platform for the most lucid expression of what would become an imperial discourse on sovereignty. The second moment in the development of the imperial discourse comes with the establishment of the Supreme Court in India in 1774 and the third, the uprising of 1857.
The British government back home learnt the lessons of 1857 well. They learnt that Indians were capable of uniting even under a weakened Mughal Emperor against the firangi, that force alone would not help sustain their hegemony. All sources of national unity and cohesiveness had to be dismantled and the foreignness of British rule sublimated in a new overarching concept of sovereignty by a de-nationalized, de-territorialized monarch who would stand above all law in the dispensation of justice to all the peoples of India. That was the imperial project. That dispensation was to come through the discourses of justice: justice-as-equity and justice-as-liberty.
The latter principle was the cornerstone of the “civilising mission” of British rule. As Mukherjee notes: “Justice as liberty…took on the form of a teleology that was based on the premise that whatever India may have been in the past or continued to be in the present, it could still move toward a future of liberty and, indeed, even freedom. The teleology of liberty gave rise to a new discourse of imperial pedagogy …This was the more precise articulation of what also came to be known as the ‘civilising mission.’ (75) Mukherjee pursues this idea relentlessly: if the mission of the imperial project was motivated by a sense of mission, “…a point of termination inevitably became a part of this mission…”And she concludes that it was this discourse of justice as liberty “that allowed the British Empire to convert—with the consent of the of the Indian National Congress—its forced departure from India in 1947 into a voluntary ‘transfer of power’ in which the first prime minister of India received his oath of office from Mountbatten, the last Viceroy of the British Empire in India.” (77)
If the discourse of justice-as-liberty then cast its shadow over a “freedom” that really amounted to a transfer of power, blessed by a representative of the Queen, then an even longer shadow was to darken the formation of Indian state. It is in this investigation that Mukherjee exhibits forensic skills.
The imperial discourse of justice-as-equity was built upon two hegemonising (and unethical) assumptions: that India was essentially an amalgam of warring communities and that it therefore required the firm hand of a monarch standing above sectarian interests to maintain the peace between those fractious communities. Justice-as-equity did not mean, as it did elsewhere even in England’s Common Law Courts, that Indians would be subject to a common law standing above all. It meant that equity was represented in the figure of the monarch that stood above all law. The roots of justice-as-equity were located in sovereignty.
But hold it! Sovereignty did you say? That means political coercive power, right? Mukherjee offers a different view. “The role of political discourse” she says. “is often ignored in a discussion of the question of sovereignty. In the dominant approaches, the issue of sovereignty has been studied overwhelmingly in terms of the sovereign’s will and his power to coerce. ..Behind these approaches is an understanding of sovereignty that is exterior to discourse…However ,,,modern power operates as much through discourse as through violence. Indeed, it is as truth that power in the modern world presents itself.” (183. Emphasis added)
Really now, if that rings a bell in your befuddled mind it should. For Mukherjee adds: “In a democracy sovereignty depends as much on the ability of the state to persuade as the ability to coerce…It requires an infrastructure of persuasion as much as an infrastructure of coercion.” (183) If that rings some more bells it too should because what else is happening tight now in the Indian republic but the exercise in persuasion that goods days are around the corner once we stop slaughtering cows?
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ow did the British after 1857 deploy the justice-as-equity principle for what was clearly an unethical legitimacy? By portraying India as a people grounded in divisiveness – caste, class – effete and barbaric cultures and practices, religions whose civilizational glory had long faded. British rule invested India – a meaningless entity by itself – with a cohesive idea of itself. Disraeli invented a ‘legal fiction’ by constructing a narrative based on the idea that the ‘native’ peoples had invited the British to rid them of their suffering from tyranny and to protect their property and rights. “It was as subjects of the principles of of ‘liberty, equity and justice’ that Indians became the subjects of the British Empire. Significantly the reverse was also true: it was as subjects of the British Imperial monarchy that Indians would become subject to the principles of liberty, equity and justice. In other words, the historical relationship of Indians as subjects to these principles came to be mediated through the figure of the Queen.” (83-84)
The hegemonizing principle worked well. It was presaged by the Queen’s message to the Delhi Durbar of 1877: “ ‘We trust that that the present occasion may tend to unite in bonds of yet closer affection ourselves and our subjects, that from the highest to the humblest all may feel that under our rule the great principles of liberty, equity, and justice are secured to them.’” As Mukherjee reminds us, “…That even as the Queen talked of her relationship with her subjects in personal terms as ‘bonds of affection’ her speech also revealed that her relationship with her Indian subjects was to be mediated by the principles of liberty equity and justice. The foregrounding of these principles as the foundation of the new state and the source of its legitimacy revealed a determination to construct a discourse of governance.”(83).
The relationship established by the sovereign with her subjects–discursive and personal–worked with the Indian National Congress when it was established in the late nineteenth century. The INC came into being in Mukherjee’s view precisely as a response to the justice as equity principle. If justice-as-equity meant referrals to the conscience of a monarch, petitions for righting perceived grievances/lapses, could the lawyer be far behind? The imperial discourse had to lead up to the age of the petition and who better to do that than the lawyer on behalf of the subjects?
So the ‘Vakil Raj’ and the INC were born with the lawyer as sole political representative. It is no accident that almost all the intellectuals and nationalists were lawyers, including Gandhi. It was not a quirk of petite-bourgeois sycophancy that led Madan Mohan Malaviya, pleading for elected representation to the Legislative Council in 1906 to round off his plea thus: ‘…Why then should it be denied to the loyal and intelligent subjects of her Gracious Majesty?’ (p. 105). There was method in such seeming unctuousness. Mukherjee reminds us that, ‘In light of the arbitrary nature of the colonial executive, the discourse of the Congress had necessarily to be addressed to a higher imperial judge…’ (p. 123) And who higher than the monarch? The lawyer, defendant, plaintiff and judge: India’s nationalist ambitions were confined to and constricted by the courtroom and its lead players.
Then along came Gandhi.
In South Africa, Gandhi, a lawyer, played the imperial game fighting – in the courts – for Indians there. When he came to India and began a non-violent cooperation movement against the British in 1921, the first call he gave was to boycott all British courts and to ban ‘lawyers from participating in and leading the struggle for national independence’ (p. 150).
In Mukherjee’s phrasing, the ‘renunciative persona’ of Gandhi was about to replace the ‘enunciative persona’ of the lawyer. The account of how this persona arrived to redefine and reshape India’s freedom struggle is riveting in its detail, fascinating in its novelty and freshness of approach. One knows one is retracing a period of India’s complex history never before examined in this fashion; as a clash of ideas of discourses as the location for what can only be called the ‘epistemological break’ in India’s long march to freedom. Gandhi did not invent the ‘renunciative discourse’ of freedom or the sanyasin as the proponent of freedom. His discourse of the renouncer was ‘genealogically connected’ with traditional Indian (Hindu, Buddhist and Jain) discourses on transcendental or renunciative freedom: mukti, moksha, nirvana. He blended these into a political slogan of swaraj like no other renouncer in the nineteenth century had.
The discourse of swaraj, of course, was a radical opposition to the epistemologies of imperial rule. It was not based on western notions of rights, of state-guaranteed duties and responsibilities. Most importantly, it did not acknowledge the distinction between the self and ‘other’. Gandhi tapped into India’s most profoundly different worldview of freedom that presupposes the erasure of identity, of the gap between the self and other that was the cornerstone of the western idea of freedom grounded in individual rights.
The first task of the competing discourse—Mukherjee also calls it the Indic discourse—was ‘to overcome the fragmentation of Indian society’ that had been an essential part of the colonial-imperial discourse and had so far prevented a national mass movement. The Gandhian discourse ‘provided a way out of the labyrinth of the politics of identity and made possible a large-scale mass movement based on non-violence, an essential pillar of the discourse of renunciative freedom’ (p. 152). As a political activist turned renouncer, Gandhi infused the freedom movement with a politics that in hindsight few understood beyond the realm of practicalities. For him, the fight for independence was a struggle for moksha, for non-attachment. It did not aim for the seizure of power; it was directed at the extinction of power, of all power itself through the erasure of identity. Political freedom then had to become transcendental liberation that negates all institutions premised on identity. The renouncer renounces all; the state has to wither away.
It is not surprising that Gandhi asked Nehru to dissolve the Congress and turn it into a social service organization. But the most tragic irony lay here. Had India really followed Gandhi? He had followed his renunciation to the hilt; he withdrew to spend his last years in dousing the fires of Partition with the healing voice of peace and harmony. He withdrew from active politics and the making of the new nation state.
Could Gandhi have done anything else? Not likely, for the logic of his discourse demanded anasakti or non-attachment. Should the rest be silence? Nehru and the Congress felt the job had just begun; a new state had to be created. Gandhi had no answer; he had become irrelevant. He was perhaps saved from providing any solutions by the bullet that claimed his life..
II
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o a search for the defining principles of the new state began—on an ominous tone that almost presaged the future. Mukherjee asks the question: Why was the end of British rule described as a ‘Transfer of Power’? Why is the freedom movement not seen as the Indian revolution in the same way that the Americans see their own liberation from the British two hundred odd years earlier? Her answer may shock the reader but it is spellbinding nevertheless and it is the core of her work.
The Constitution that finally emerged after six years of deliberation pulled the nation away even further from the Gandhian discourse and right into the old imperial discourse that the freedom struggle had so successfully battled, but not overthrown or upturned. The ‘Transfer of Power’ stretched the long shadow of empire over the framers of the Constitution; not surprisingly its essential principles were reminiscent of the old imperial discourse.
How so? Mukherjee draws our attention to The Preamble. It lists justice in economic, social and political domains as the primary function for the national good followed by liberty, not in the above domains but in thought, expression, belief, faith and worship. The Preamble thus ‘clearly constitutes justice rather than freedom as its foundational or over-determining category, bringing the social, the economic and po466litical domains within its jurisdiction…the category of liberty or freedom is is second in importance to justice.81’ (186).
The foundational principle of justice as the pivot on which Indian democracy turns owes its origins to the imperial discourse of justice as equity, says Mukherjee. Her penultimate chapter captioned with a question, ‘An Imperial Constitution?’ answers in the affirmative. “What one sees in the Indian Constitution is the ultimate triumph of the juridical-epistemological framework of empire” grounded in the idea of justice as equity with “its accompanying figure of the monarch as judge. It is in the Constitution that one can see the mutation of imperial justice as equity from a critical category of anti-colonialism to the sovereign legislative category of Indian politics and the final marginalization of the post-Independence formation of the Gandhian discourse of transcendental freedom under which the struggle for Independence had been largely carried out.” (181 Emphasis added.)
Who could this monarch-as-judge be in a new avatar of the old discourse? A judge who stands above the law, who precedes the law as the embodiment of justice – in other words a monarch or sovereign exterior to the people? Why, the state itself!
In the Indian Constitution, justice as equity is the sovereign legislative principle. Being so, it allows the legislature or state to resolve ‘a conflict between the legislative imperatives of universal law and discretionary equity’ in favour of the latter (emphasis added). In this scheme of statehood, the state comes before the law. ‘The state is the source of all laws not the people. The state – not the people – is therefore also the source of the Constitution’ (191.Emphasis added).
Bear in mind, Mukherjee seems to tell us, that the monarchical state stood outside and above the people; so “the discourse of justice as equity was historically anchored in the duty and compassion of the monarch in opposition to the modern evolutionary discourse of the rights of the citizens deriving from the universality of the law…” Not surprisingly then, “the directive principles were specifically defined in terms of the duties of the state rather than as rights of the individual.” (191).
Where does that leave freedom? The Indian Constitution does mention freedom as a Fundamental Right but it is subordinated to the principle of justice. And since the state is the arbiter of that principle of justice as equity, it also has the right “to suspend or override freedom when (it is) deemed to be coming in the way of justice” (192).
The framers of the Constitution achieved this end by adding qualifications to each right to such an extent that one Constituent Assembly member, Somnath Lahiri remarked, quite unerringly, that the rights had been framed from “the point of view of a police constable.” Granville Austin, the constitutional scholar is summoned by Mukherjee to say that “ this particular aspect of personal freedom was whittled down until on paper at least it was non-existent.” 194)
Ramifications follow from the legislative sovereignty of justice as equity and the subordination of individual freedom especially for the judiciary in relation to the executive. The Supreme Court’s power to examine parliamentary legislation in terms of its constitutionality was drastically reduced, “if not altogether removed by the framers of the Indian Constitution. While the Constitution did provide for judicial review in the domain of Fundamental Rights (think Aadhar and right to privacy!) and the relation between the central and the state legislatures, severe restrictions were placed on the nature of review. ’ (194).
More surprises follow. The framers further undermined the Supreme Court by rejecting the ‘due process’ clause as a ‘fundamental procedural element in the constitution despite ‘overwhelming public demand for it’ And why would the public have wanted due process? “By giving the courts the power to judge in a case where the the individual’s rights may have been infringed upon by the legislature or the executive, the right to due process safeguards fundamental rights from the excesses of the state..” (195. Emphasis added.)
Nehru, GB Pant and other Congress leaders opposed due process: “‘To fetter the discretion of the legislature could lead to anarchy’” They contended that “…in the interests of law and order, the prevention of violence the imperative of social justice, the due process clause needed to be dispensed with, and Parliament given the absolute power to override the rights of the individual.” (195. Emphasis added)
The ‘Constitution is a creature of Parliament,’, and if that was the case it could also be amended. “Parliament had the right to amend the fundamental provisions of the Constitution if the court’s decisions conflicted with its own sense of justice as equity.” Thus, amendments became, as Mukherjee notes, “an institutionalized way of dealing with judicial independence and asserting the legislative will of the Parliament even when the legislations were declared to to be unconstitutional by the Supreme Court.”(196)
When Nehru declared that “‘No Supreme Court and no judiciary…can stand in the way of the sovereign will of the Parliament , representing the will of the entire community…” and by designating the Constitution as a ‘creature of parliament’ Nehru had placed Parliament and in effect, the ruling party and its leader above the Supreme Court and the Constitution itself. It was in the Parliament, a.k.a. the ruling party and its leader, that the sovereign of the discourse of justice as equity was located—as it was in the figure of the Queen during the imperial raj.
The empire had struck back. .
Reading ‘In the Shadows…’ what we learn is that the ‘imperialism of categories’, to use Ashish Nandy’s memorable phrase, is alive and throbbing in the assertion of the legislative sovereignty of justice as equity, in the subservience of individual rights and freedom to justice – as interpreted by its supreme arbiter, Parliament and, by implication, the party in power.
III
Someone once said, you never read the same book twice. Re-reading ‘In the Shadows…’ first published in 2010, and after a review in Seminar magazine in 2014 did not give me the sense of having walked down this road before; not even those heavily underlined passages that should have invoked a sense of déjà vu. That had been a different reader. Now, it was the resonance of its pivotal ideas in the reality we live; or, to turn the equation around, in the way that the increasingly frightening omniscient state reaching out to grab us by the short and curly, to determine for us the codes by which to live and think—all in the name of justice and development—echoed so much in the pages of her book that made me think of re-visiting that period of our tryst with destiny through Mukherjee’s text. When I opened the book to the section on the ‘Imperial Constitution?’ I decided to read the book once again; I could hear the drumbeats of vaunting authoritarianism posing as grandstanding rhetoric.
Not for the first time India is confronted with the prospect of an authoritarianism smelling the fruits of unbridled power The idea of a sovereign leader standing above all law, dispensing justice is the procrustean bed of our political life, of our democracy; democracy in India is not freedom for the individual grounded in rights primarily; it is the freedom for the State to determine and fashion the liberties of its subjects—all in the name of justice and development. The only unfettered freedom for the individual to vote a party into power that can then decide the freedoms we are entitled to.
In India then electoral democracy is simply the means by which we endorse the power of the State, of the ruling party as the sovereign arbiter of our liberties.
As head of state, the ‘sovereign’ does not need an Emergency, or a coup or coercive means (as yet) to enforce its will. The foundations on which the Indian State are erected allow for such a possibility in the first instance; that is Mukherjee’s unstated message; at least that is how one can read her text of an Imperial’ Constitution, of the echoes she finds of an imperial sovereign past, in the attitudes of our founding fathers to ‘due process’ to accountability to a judiciary and laws that should limit its excesses.
In Mukherjee’s view, the exercise of power, of sovereignty and of the perpetuation of the imperial discourse of justice-as-equity needs more than coercive power; it needs a discourse; imperial power (and by implication, the power of the Indian State) need not be guaranteed by force, political or economic might, by material appropriation and dispossession alone; it was and continues to be legitimized in the hearts and minds of the subject through persuasion, by convincing its subjects that had been racked, ransacked by innumerable conquerors that its moment of glory had passed, that it was dysfunctional, malcontented, its communities at war with each other. It needed to welcome the supremacy of a foreign monarch and his/her categories of imperial rule to hold it together.
By implication, that persuasion or discourse now has a new infrastructure to suit the sovereign’s ideological needs and to convince us that we Indians are at threat from ‘divisive’ forces that celebrate differences in religious beliefs, eating habits, dress codes and languages, from those who would destroy the fabric of our unity by extolling its diversity. Justice and development are prioritized; freedom is assigned—by the State—to only those purveyors and disseminators of the culture of statism, homogenization and majoritarianism.
Mukherjee’s book is outstanding not just because it attempts to answer puzzling riddles long ignored, for instance, why ‘Transfer of Power’? Its brilliance lies in raising more questions than it sets out to answer: The paradox of the renunciative discourse’s rapid disappearance from the political and psychological landscape of modern India soon after it had attained its formal objectives of what can be viewed as a qualified freedom. Was Gandhi’s project, of ‘transcendental freedom’ perhaps a Greek tragedy destined to an inevitable failure? Now one knows why disparate aspects of his practice and precepts, so ridiculed and made ludicrous, such as prohibition, the village economy, the loin cloth, his call to the Congress to disband, his experiments in celibacy make sense; seen discretely they appear as simulacra. Their truth lies in the wholeness and tragedy of the renunciative discourse that enabled India’s freedom and was, in turn, disabled.
Notes --INDIA IN THE SHADOWS OF EMPIRE. A Legal and Political History 1774-1950 by Mithi Mukherjee. Oxford India Paperbacks, 2010. -- Mithi Mukherjee is Associate Professor of History at the University of Colorado, Boulder.USA. --The above essay is a modified version of my review in Seminar Magazine August 2014. Reprinted with kind permission of its publishers.
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