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The Materiality of Politics Volume 1

The Technologies of Rule

Wimbledon Publishing Company

COLONIAL CONSTITUTIONALISM

'I must see with my own eyes, touch with my own hands, not only the fixed, but the momentary circumstances, before I would venture to suggest any political project whatsoever, I must know the power and disposition to accept, to execute, to persevere ... I must see the means of correcting the plan, where correctives would be wanted. I must see the things; I must see the men ... The eastern politicians never do anything without the opinion of the astrologers on the fortunate moment ... Statesmen of a judicious prescience look for the fortunate moment too; but they seek it, not in the conjunctions and oppositions of the planets, but in the conjunctions and oppositions of men and things. These form their almanac.'

— Edmund Burke, cited in Alexander M Bickel, The Morality of Consent (Yale: Yale University Press, 1975), pp.15-6.

I

To understand how India is ruled today, we must begin with one of the most decisive features of colonial rule in India — the colonial constitutional designs and colonial constitutional culture. Colonial constitutionalism was designed to reinforce the material aspects of colonial rule; it was in fact one of the most physical aspects of the process of rule. If colonialism could not survive without its constitutional pillars, constitutionalism had to be colonial in order to culminate in the text that constituted power. This was one of the most fundamental lessons of our colonial history, a lesson still relevant today.

One of the most insightful comments on British constitutional design in India came not from a nationalist political leader, but from Tagore in his last essay, 'The Crisis of Civilization' (1941). The Second World War had broken out, and the large-scale slaughter of humanity was well under way. India was still under subjugation, and protests were being drowned by ruthless demonstrations of power, law and order. Tagore, a knight of the British empire who had returned his knighthood, and who considered himself to have been brought up in the 'ethos of enlightenment', now saw as he was nearing his death only the aridity of rule and ruins of a civilization all around. To him, 'law and order' were central to the misery of India, which was now in a shambles because of the way the notions of law and order had been played out. 'Law and order' were the fruits of the poisoned tree of colonialism; they represented the destiny of a translated constitutional culture.

Colonial constitutionalism poses the fundamental question: who is the subject of law, and who is the author of law? In truth, constitutionalism can only be colonial. In constituting rules and thereby constituting itself, the constitution has to judge what to select as its constituting rule(s). Further, it must judge what rule(s) to make de novo, what rule(s) to inherit, co-opt, what to colonize and what to leave out. It must also decide what rule(s) to make secondary or derivative. Within its own world, the applicability of the constitution is universal. Colonial constitutionalism, which began in India as constitutional colonialism, is thus not a neologism, but a phrase that indicates a reality wider than it immediately siiggests. Its topography shows that only by not being universal is its claim to universal applicability established; so is established the truth of the constitutional deficit. The bond uniting the universal and the colony is ruptured when constitutionalism meets its dead end — partition, genocide, civil war, independence, anarchy, revolution, revolt and other forms. Till then, constitutionalism does not recoil from colonization. This is a political question; our sensitivity to the problems of our time cannot allow us to treat the question of colonial constitutionalism as simply a methodological, speculative or a discursive problem. Indeed, through his comments on 'law and order' and the 'due process of law', Tagore was pointing out the possibility of such juxtaposition to the critical thought of colonized people. Today, with advances in the technologies of power, it is no longer novel to critique the notion of 'law and order', the child of liberal constitutionalism. Yet, we must understand why war exposes the fallibility of this grand notion. It is not because war brings an end to 'law and order', but because war ruthlessly demonstrates how constitutionalism cohabits with war. As Tagore indicated, law and order coexist with the ruins of a civilization.

War and constitution — can there be stranger bedfellows? Stepping beyond the received alternatives of war and constitution, what is needed is a reconstitution of the relation between politics and history. If our claim to belong to an age of criticism is true, we must go beyond Kant who saw constitution as a way out of lawlessness, and investigate the ways in which constitutionalism originating from the West overrides politics. Alternative notions about politics and political societies have almost disappeared and dialogue takes place under the constitution, secured by forces of law and order.

In South Asia, the constitution has long ceased to be a matter only for constitutionalists. Legal philosophy, legal theory and legal deliberations are now continuously subjected to contending political forces that severely test the bicameral character of constitutional law, namely its factual nature and ethical underpinnings. As conflicts conflagrate, constitutions have to explain whether they guarantee freedom or are coercive. In other words, the constitution, hitherto enjoying validity from its origins in a colonial power, and therefore substantively free from popular deliberations, now needs to explain itself: is it a collection of norms backed by the state, or norms whose validity stems from the fact that they guarantee autonomy of all legal persons equally? An answer in either case must face the next question: what ends the legitimacy of rules that can be changed at any time by the political lawgiver? For Habermas, the 'strategic approach' considers law as command and the 'performative attitude' views the law as norms to be respected as valid precepts — these two views refuse to be reconciled, as citizens in the role of subjects of law cannot visualize themselves as the authors of law as well. In terms of legal theory, the modern legal order therefore faces challenges as this order has to be based on the legitimacy of self-determination. The Spanish constitutional historian Bartolomé Clavero has shown us how 'freedom's law' that defined the Euro-American constitutional moment in the eighteenth century contained norms of exclusion which helped it to define who would be free and to what extent and towards whom the state would be responsible for its conduct. Therefore, the cardinal question is: who enforces the norm and on whom does the burden of rights and responsibility rest? And, if power is being questioned by the norm of rights and responsibility, is not the norm itself often circumscribed by the configuration of power?

This presents a great problem for the constitutional state. The constitution speaks of rights. But rights are against the state and they arise 'co-originally' with constitutional principles of legality. Thus rights, supposed to deepen constitutionalism, weaken the regime by constant recourse to legitimacy from some higher-ranking moral law. Wars, particularly declared and undeclared civil wars — as in Sri Lanka, India and Nepal — often become the expression of the demand to frame other procedures. Modern constitutionalism tells us that the constitution produces citizens as much as citizens produce the constitution. This was the lesson from the constitutional culture of the West. But this discourse of relation cannot anticipate its destiny in faraway colonial lands. For example, the Indian constitution is unable to make space for a citizen with multiple political identities, i.e. one who remains a citizen while retaining loyalty to another configuration, or refuses to respond to the calls of the state to take up arms in defence of the nation, or retains arms at will, or refuses to observe all laws, etc. The citizen is thus compelled to act as a uniform citizen. Does it not relegate him/her to the status of a subject? With the hierarchical structures of modern politics being reinforced by the constitution, the citizen is once again the subject. But with the relation of the citizen to the state no longer built on a morality of mutual obligation, ironically all that the constitution can ensure is the principle of political exchange, a transaction — 'I provide you with service, you provide me with loyalty.' If the state fails to play its part, the citizen too withdraws, throwing to the winds the constitutional virtue of achieving procedural democracy and resorting to street politics. Under such circumstances, the state rebuilds itself not on the basis of a participating citizenry, but by distinguishing its subjects (who are nominally citizens) from aliens on the basis of loyalty. The constitutional process separates citizenship from 'alienhood' comprising refugees, dropouts, illegal immigrants, terrorists, anarchists and other excommunicated sects of modern society. A starting point of such an investigation into the destiny of a received constitutional culture would certainly be to inquire into the consequences of constitutionalism on patterns of political contests and contentions. In subsequent chapters, therefore, we return repeatedly to the issue of the hold of the constitutional culture on politics, because this is the single most important site governing the relation between the state and political subject.

Habermas has spoken of the French Revolution's abiding legacy in presenting popular sovereignty as procedure. However, he does not notice or ask in the course of his long explanation, why only a form of violence could offer popular sovereignty as procedure, a new mode of practice and self-determination, a new mode of communication, legitimation and thus a new mode of 'communicatively generated power'. In other words, he does not reflect upon the ability of war to present itself as a procedure of deliberations. What happens when and where war forces a constitution to accept deliberations, or presents a new set of political lawgivers as deliberators of sovereignty? Or what happens when a constitution stops producing deliberative procedures and these deliberative procedures start emerging from another set of political practices outside the constitutional precincts, namely accord, justice, recognition and reconciliation? Clearly, today constitutional legitimacy is giving way to other legitimating modes of democracy and rule.

Of course, liberal arguments of constitutionalism do not recognize the problem of constitutional deficit — the deficit produced from within constitutional politics whether originating from a Whig view of society or from a view that originates with Locke. And nowhere has it been more evident than in the colonial practices of constitutionalism, which remain intolerant and hostile to any civil dissent and disobedience against constitutional truths, in the name of the 'morality of consent' on the basis of which the constitution is made. Thus, all talks of the Indian state with the rebels (in Kashmir or Nagaland) flounder on this rock, talks of the Pakistani state with the Baloch rebels in 1973-5 floundered for the same reasons, talks with the peasant guerrillas led by the Maoist Communists in Nepal are failing for identical reasons and current talks with the rebels in Sri Lanka will probably also share the same fate. Indeed, this was exactly the dilemma that the constitutionally organized colonial state in India faced in the first four decades of the last century — how to turn the consent it had received into a basic text. Consent needed to be transformed into a computing principle that Burke had espoused; he had advised that constitutionalism would have to defend the principle as its raison d'etre in the face of the demands of daily negotiations, daily plebiscite and daily legitimacy. In response to the impact of the French Revolution and the declaration of the rights of man, constitutional arguments took shape. And there is enough evidence to show that both in the United Kingdom and United States the development of constitutionalism was based on a commitment to pragmatism that Edmund Burke wrote about. 'I must see with my own eyes', he said, (I must) touch with my own hands, not only the fixed, but the momentary circumstances, before I would venture to suggest any political project whatsoever, I must know the power and disposition to accept, to execute, to persevere ... I must see the means of correcting the plan, where correctives would be wanted. I must see the things; I must see the men ... The eastern politicians never do anything without the opinion of the astrologers on the fortunate moment ... Statesmen of a judicious prescience look for the fortunate moment too; but they seek it, not in the conjunctions and oppositions of the planets, but in the conjunctions and oppositions of men and things. These form their almanac.' (author's italics)

This was the sort of physical need that impelled the political class to invent constitutional rule to manage, control, monitor, add correctives and 'touch' the rough edges of politics.

II

The main political problem for colonial rule in India was how to stabilize legal order in the face of assaults of moral politics, dissent and attempts at revolution. The introduction of responsible government in phases was the solution. That political problem still remains. From time to time constitutionalism finds itself assaulted by internal organs. Therefore, constitutionalism has to discipline these over-ambitious institutions. The period of judicial activism in defence of human rights in India (the 1980s and 1990s) suffered the same fate that the US Supreme Court did after the Warren period there. The main function of constitutionalism in such cases is to put in place anti-institutional forces, who think that besides elections there can be other things bespeaking people's will. Colonial rule insisted on the relevance of franchise and refused to accept anything that it judged as plebiscitary. This colonial practice did not simply emerge as a consequence of the endeavours of the colonial powers to legalize their rule in the colonies; it emerged within the colonizing countries themselves. Colonialism had one more enduring feature to bequeath. The adversarial game between rulers and the opposition (parties, individuals, groups, newspapers), which itself was a product of constitutionalism, was strictly a compendium of rules of contest. The game called on the opposition to consider the responsibilities that its position implied. Therefore, consent was the main thing. This was paradoxical because the constitution depended on defined and strictly followed roles of institutions. Such a maze of roles and rules depended on the consent of the governed. Theoretically therefore, constitutionalism was always to oscillate between a Rousseauistic consent-governed theme (where parliament, assembly, a Gaullist leader, or a group could claim that it represented the will of the people) and the spirit of 'constitutional engineering' (that meant constructing elaborate rules for domesticating disobedience of an unruly society and putting a haphazard polity in order). Colonial constitutionalism resolved the dilemma by reconfirming Burke's notion that political reason was the foundation of a political society and would defeat 'the chaos of levity and ferocity'. In our own time, after 200 years of constitutional engineering, Burke rules the world of political reason. Liberalism has negotiated the dilemma, posed by the simultaneous existence in the domain of law of authors of law and subjects of law,; by establishing the legacy of constitutional engineering based on a political reason that is able to initiate what Burke called 'the sans-culotte carcase butchers' in the chambers of tedious, moderate and practical reflections. Again, if the success of such a strategy was evident in the colonial period of Indian politics (where Dalit politics was bogged down with negotiations with the colonial rulers and Gandhi, settled for the Poona Pact and crowned its own activism by entering the Governor-General's Cabinet), now too its success is evident in the incorporation of Dalit politics into the legislative games in the parliament or in states like Uttar Pradesh.

The notion of engineering lay at the heart of colonial juridical innovations regarding principles of rule. It did not mean starting everything de novo, it abstracted many things from the past. In one of his essays, Tagore noted the continuity of the vice-regal congregation for oath-taking and the Mughal culture of imperial assemblies. We can see the continuity between colonial frontier policy and independent India's frontier enclave management through various constitutional provisions and accords (for example, Article 371, Article 4, the Sixth Schedule). More importantly, the cabinet system of government that imperial rule had introduced in the nineteenth century has been retained. Constitutional engineering has, however, meant designing everything, constructing everything, leaving nothing to chance — from ordinary aspects of daily rule to regulating the entire life span of the political subject. Thus, having learnt from the experience of English constitution-making (where the constitution is too large to be written down as a single text), and the early attempts at American constitution-making in Maryland, Virginia and Pennsylvania, which needed one and a half centuries of papers, debates and rulings to stabilize, the Indian political class made a quantum leap in constitutional engineering in 1950 by framing 395 Articles and a number of detailed Schedules. In Japan, the post-Meiji constitution became twice as long as the Meiji constitution with a preamble, 11 chapters and 103 Articles. The Brazilian constitution of 1988 became a huge book with 245 permanent Articles and 200 transitional items. In 1979 Peru needed 307 Articles sub-itemized in great detail. Framing constitutions has become a serious business. The colonial mode of governance appears to have become more popular than Burke or Madison could have imagined.

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Excerpted from The Materiality of Politics Volume 1 by Ranabir Samaddar. Copyright © 2007 Ranabir Samaddar. Excerpted by permission of Wimbledon Publishing Company.
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