Constitutional Law

Constitutional Transformation: Radical or Gradual?

In a recent discussion on ‘a changing society and constitutional continuity: experience in pursuit of justice’, Justice D.Y. Chandrachud commented that the Indian Constitution embodied a transformative vision at its birth.[1] The founders attempted a radical transformation of a society which was based on caste and patriarchy, where liberty lay at the command of a colonial master. The Constituent Assembly took almost three years to draft the (longest) Constitution for the newly independent nation. During this period, they borrowed ideas from the constitutions of various countries. In this quest of considering the best constitutional practices, the drafters made a departure from the existing realities of the country with a colonial past.

Uday Mehta points out that the Constitution created a federal democracy in a country which had only experienced imperial and princely authority.[2] It committed the state to be secular in a land that was deeply religious and granted the universal adult franchise in a country that was overwhelmingly illiterate. It not only granted fundamental rights to the individuals but also evacuated every form of prescribed social hierarchy which was widely prevalent in Indian society. In this way, the Constitution brought a radical transformation in the Indian polity and society.

However, there were some issues on which the Constituent Assembly did not concretely decide. Issues like citizenship, directive principles of state policy (including the adoption of uniform civil code), issues of national/official language, etc. were deferred for the future legislators to resolve. A separate chapter was included as Part IV of the Constitution which provided for non-enforceable rights as it was believed that the country was not in a condition to provide those rights to its citizens. Similarly, for issues like citizenship and national language, the members of the Assembly could not resolve their disagreements and left these issues to be gradually decided by the future legislators.

Deference as a mode of gradual transformation

In Making constitutions in deeply divided societies, Hanna Lerner argues that the Indian framers opted for ‘constitutional incrementalism’ rather than ‘revolutionism’.[3] The Constituent Assembly was not a revolutionary body. It derived its authority from the existing colonial legal framework. B.N. Rau in India’s Constitution in the Making classified the moment of independence as ‘transference of power’.[4] In terms of governmental and administrative machinery, the transfer of power represented the simple succession of personnel.[5] Even the provisions of the Constitution were heavily influenced by the Government of India Act, 1935.

Rosalind Dixon and Tom Ginsburg argue that the strategy of express or implied ‘constitutional deferral’ is an increasingly common feature of constitutional design worldwide.[6] On the issues on which they were divided, the solution was to adopt an ‘incrementalist’ strategy in the hope that the issue could be resolved in the future. It was believed that the Indian political system would gradually develop its own processes of democratic decision-making, rational administration, and modern citizenship.

Although in issues like national language and uniform civil code the country has not witnessed the transformation, law related to citizenship has been gradually transformed over a period of time. At the time of constitution-making, jus soli (based on birth) was chosen as a form of enlightened, modern civilized and democratic citizenship, over the rival principle of jus sanguinis (based on descent) which was described by the constitution-makers as an ‘idea of racial citizenship’.[7] This was a progressive decision, especially in those circumstances.

However, there has been a fundamental shift in the policy of granting citizenship from jus soli to jus sanguinis. The Citizenship Act, 1955 incorporated both these conceptions, providing for citizenship by birth as well as by descent. However, the legal conception of the Indian citizen started to undergo a subtle transformation. With the 1986 and 2003 amendments which mandated one or both parents to be the citizens, there was a clear shift from jus soli to jus sanguinis. It was a shift from the more inclusive principle of legal citizenship articulated in the Constitution to a less inclusive conception.[8] Before the passing of the 2019 Amendment Act, it was feared that it could (further) displace the principle of jus soli in favour of jus sanguinis, and thereby entrenching a majoritarian and exclusionary conception of citizenship, replacing the existing pluralist and inclusive conception.[9] With the enactment of 2019 Act which introduced religious difference into the religion-neutral law of citizenship, this trend is even continued till date.

While jus soli remains the governing principle of citizenship in India, citizenship law and jurisprudence have come to be manifestly inflected by elements of jus sanguinis.[10] As the divisive legacy of the Partition and the religious identities implicated in it continue to lie at the core[11], despite the victory of the jus soli conception of citizenship, there has been a gradual and subtle shift towards a jus sanguinis conception.

Conclusion

The constitution-making saw the adoption of some progressive constitutional principles which radically changed the Indian polity and society. It has been argued that the Constitution was intended to transform not just the political status of Indians from subjects to citizens, but also the social relationships on which legal and political edifices rested.[12] This transformation was reflected in the provisions of fundamental rights enforceable against groups, communities and private parties. However, most of the governmental structure was deeply influenced by the colonial regime. Constitution of the country was not a product of a revolution. Although some of the provisions brought radical shift, the intention of the framers was to give a transformative character to the Constitution so that it can evolve organically over a period of time. And on controversial issues on which they were divided, they used the mechanism of constitutional deference to intentionally formulate provisions to be resolved by the future legislators which proved to be a gateway of transformation Citizenship is one such part of the Constitution which was deferred and saw gradual transformation over a period of seventy years.


[1] Justice DY Chandrachud, Supreme Court Judge, Speech on the celebration of birth anniversary of late Shri Y.V. Chandrachud, Former Chief Justice of India: A Changing Society and Constitutional Continuity – Experience in Pursuit of Justice (July 12, 2020).

[2] Uday S Mehta, Indian Constitutionalism: Crisis, Unity and History inThe Oxford Handbook of the Indian Constitution(Pratap Bhanu Mehta, Madhav Khosla et al, 2016).

[3] Hanna Lerner, Making Constitutions in Deeply Divided Societies 145 (2011).

[4] B.N. Rau, India’s Constitution in the Making 1 (1960).

[5] Uday S. Mehta, Constitutionalism inThe Oxford Companion to Politics in India 15, 19 (Pratap Bhanu Mehta, Niraja Gopal Jayal, 2010)

[6] Rosalind Dixon & Tom Ginsburg, Deciding Not to Decide: Deferral in Constitutional Design, 9 Int’l J. Const. L.636 (2011).

[7] Constituent Assembly of India Debates, April 29, 1947, available at https://www.constitutionofindia.net/constitution_assembly_debates/volume/3/1947-04-29 (Last visited on October 2, 2020).

[8] Niraja Gopal Jayal, Reconfiguring Citizenship in Contemporary India, 42(1) Journal of South Asian Studies 2 (2019):

[9] Id.

[10] Niraja Gopal Jayal, ‘Citizenship’ in The Oxford Handbook of the Indian Constitution (Choudhry, Khosla and Mehta eds., 2016).

[11] Id.

[12] Gautam Bhatia, The Transformative Constitution: A Radical Biography In Nine Acts (2019).


Shantanu Pachauri

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Shantanu is an advocate registered with the Bar Council of Uttar Pradesh. He did his LL.M. in constitutional and criminal law from National Law University, Delhi and completed B.A.LL.B.(Hons.) from National Law Institute University, Bhopal. His research interest lies at the intersection of constitutional and criminal law. He may be reached at https://www.linkedin.com/in/shantanupachauri/.

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