How India Became Democratic - Part IV: Ornit Shani responds to experts' comments on her book
Ornit Shani’s 'How India Became Democratic: Citizenship And The Making Of The Universal Franchise' tells the fascinating story of independent India’s first general election. The Indian Constitutional Law and Philosophy Blog is discussing the book in a four-part series that we're republishing here
Editor's note: Ornit Shani’s 'How India Became Democratic: Citizenship And The Making Of The Universal Franchise' tells the fascinating story of independent India’s first general election. The Indian Constitutional Law and Philosophy Blog is discussing the book in a four-part series that we're republishing here. In this concluding column, Ornit Shani responds to the preceding three essays.
Response to Suhrith Parthasarathy
Parthasarathy presents superbly the main themes and arguments of the book about how the preparation of electoral rolls on the basis of universal franchise, ahead of the constitution, engendered struggles for citizenship, driven from below by Indians of modest means; about the tremendous administrative efforts the making of the universal franchise for the largest electorate in democratic history entailed, and the rewriting of the bureaucratic imagination it necessitated; and how the preparation of rolls on the ground informed the process of Constitution making. Parthasarathy rightly stresses the commitment to equality and to the right to vote that drove the making of universal adult franchise, not just as a constitutional vision, but also in practice, even before the constitution was finalised and came into force.
Parthasarathy focuses on a case where the government of Travancore refused to register on the electoral roll Tamilians who resided in the state but were not Travancore naturalised subjects of the state. In redressing the grievance of these Tamilians against the government of Travancore, the joint secretary of the Constituent Assembly, determined that the state had to register them as voters on the grounds that the state could not legislate or set qualifications that were inconsistent with the provisions of Part III [Fundamental Rights] of the draft constitution. It was inconsistent, in this instance, with the prohibition of discrimination on the basis of a place of birth. So, in this case, a fundamental right provision was inextricably interlinked with and protected by the draft (prospective) constitutional provision (289 B, and finally article 326), which entitled every citizen of India to be registered as a voter at elections to the legislator of the State.
Parthasarathy discusses this case to reflect critically on the Supreme Court’s decisions and reasoning on the status of the right to vote in recent law cases (In Shyamdeo Prasad Singh v. Nawal Kishore Yadav (2000), Rajbala v. State of Haryana, (2015), and in Javed & Others v. State of Haryana & Others). Strikingly, the legal status of the right to vote has been a subject of debate for some time. The court has debated whether the right to vote is a fundamental right, constitutional right, or whether it is a right created by statute. Parthasarathy argues, on the basis of his analysis of the case of the Tamilians from Travancore, and the commitment to equality at large, which drove the making of the universal franchise, that it was ‘clear to the Constituent Assembly that the electoral process would in any event be subject to the larger guarantees in Part III’, and that ‘the fundamental rights enshrined in Part III cannot be isolated from the electoral process.’ I would like to make a few observations and some proposals to further strengthen Parthasarathy’s arguments. I will do so from both the perspective of the constitution makers’ intentions and their actions. I am not trained in the law, and therefore the proposals I offer below should be seen as based on my historical investigation and understanding of the actual making of the right to vote under universal franchise.
1. The Constituent Assembly Secretariat undertook the preparation of the draft electoral rolls on the basis of universal franchise, thus implementing the right to vote, from November 1947, to ensure the holding of ‘fresh general elections as early as possible after the new Constitution comes into force’. (p. 91). They did so on the basis of the Constituent Assembly’s decision, while discussing the Interim Report of the Advisory committee on the Subject of Fundamental Rights, to adopt the principle that every adult citizen shall have the right to vote.
2. Realising the idea of one women/man one vote – institutionalising equality for the purpose of voting – was fundamental to the building of a democratic edifice for India. The seriousness of purpose that was demonstrated in implementing this idea during the registration of India’s prospective voters, based on a deep commitment to procedural equality and on a comprehensive inclusive drive – attending, for example, even to the voting rights of vagrants living in huts erected illegally was fully aligned with the fundamental constitutional vision of creating a democracy for India. It is reasonable to argue that implementing the right to vote through the preparation of rolls was the first constitutional promise to be fulfilled by the new republic.
3. During the preparation of the rolls, people grew to conceive of their voting right as a basic guarantee of the constitution. As I show in the book, a number of citizens’ organisations were established in order ‘“To safeguard the right of franchise as guaranteed by the new constitution”’ (p.64). Numerous others fought for a place on the roll to ensure their citizenship and voting rights.
4. Most importantly, perhaps, as a result of the implementation of the right to vote through the preparation of rolls, especially the experience of distinct forms of attempted disenfranchisement on the ground at the state level, constitution makers agreed towards the end of the constitutional debates on a ‘radical change’ (p. 185) in the election provisions. It aimed to ensure and fortify the autonomy and integrity of the election machinery, and to safeguard and give an explicit expression to the notion of universal franchise on the basis of a single joint electoral roll. The new article stipulated that the election machinery for all elections to parliament and to the legislatures of every state would be vested in a single independent central Election Commission at the centre. The implementation of the right to vote, a perennial and iterative process in a democracy, was removed from of the purview of the states, as it was originally set to be.
In conclusion, constitution makers agreed in April 1947 to the suggestion of the Advisory Committee that the provisions on the right to vote ‘should find a place in some other part of the Constitution’, rather than in the part on Fundamental Rights, as was suggested by both the Fundamental Rights Sub-Committee and the Minorities Sub-Committee. I agree with Parthasarathy that this was a ‘judgment founded on form’. The Advisory Committee unanimously supported the principle of adult franchise, free and fair elections and the management of these elections by a body that is independent of the government of the day. It is true that some of its members doubted whether franchise would ordinarily be part of fundamental rights, and whether dealing with franchise broadly was within the Committee’s jurisdiction. But in June 1949, on the basis of the actual implementation of the right to vote, constitution makers erected a constitutional fortress safeguarding the right to vote within the constitution. The Election Commission is the guarantor, in practice, of the right to vote. As some scholars have argued, the Indian constitution moved beyond the classic separation of powers in its creation of an independent Election Commission. As an autonomous edifice within the structure of the separation of power, should it not be considered part of the constitution’s basic structure? Nehru’s insistence, when some doubts were raised about the universal franchise, that ‘It is one of the basic laws, according to me’, is a footnote to these observations, which I hope strengthen Parthasarathy’s arguments.
Response to Anupama Roy
Prof Roy addresses two broad themes of the book: the making of democratic citizenship and the fashioning of a democratic political imaginary, which I suggest were driven by the preparation of electoral rolls and the contestations for citizenship that emerged in this process. Roy presents my broad arguments about these themes, and raises some important questions about each of them, and about the relations between the two.
Roy asks ‘how the big connection between a bureaucratic process [the preparation of electoral rolls] and democratic imagination could be made’, and asks me to think about the idea that Indians became voters before they were citizens, and about the preparation of rolls as a state building process.
The question of the connection between the bureaucratic process and the democratic imagination is very important. Three main interlinked processes, which together constituted the actual process of implementing electoral democracy, and which produced engagement with shared democratic experiences among civil servants and between people and administrators, played a role in connecting the two. These were the rewriting of the colonial bureaucratic imaginations and habits on franchise and voting rights; the way the universal franchise became a meaningful political order in which Indians would believe and to which they would become committed; and the ongoing numerous interactions between people and administrators about the preparation of the electoral rolls.
The task of the administrators was to operationalise the notion of procedural equality for the purpose of electoral voting. They had to imagine a joint list of all adults in the land — women and men of all castes and classes — each carrying the same weight as equal voters. Designing instructions for the preparation of electoral rolls on that basis required a rewriting of the pre-existing bureaucratic colonial imagination on franchise and voting rights. This process began over four months of consultations between and among administrators at all levels throughout the country, during which they were asked to envision how the lists should be best prepared, the difficulties they might encounter and how these could be overcome. This all-India administrative exercise in guided democratic political imagination imbibed the notion of universal franchise and of procedural equality for the purpose of voting within the administrative machinery. This process deepened in the context of the intense struggles for citizenship and for a place on the roll that arose once the registration of voters began. The commitment to procedural equality that was cultivated in the process of the preparation of the electoral rolls, and that went beyond a notion of efficiency in election management, was strikingly demonstrated when the collector of Bombay, for example, took in November 1948 proactive steps to ensure the voting rights of vagrants, servants and footpath dwellers.
I suggest in the book, that it would not have sufficed for a democratic vision based on adult franchise to become merely embedded in the institution of electoral democracy. The abstract principle of universal franchise also had to be embedded in the imagination of people. They had to find meaning in it, to own it, and to find a place for themselves in it. They had to make it personal. I argue that the storytelling about the preparation of rolls connected people to a popular democratic political imagination. Stories about the preparation of rolls were published in governments’ press notes and in the press. There was not a single ‘pervasive popular narrative’. Numerous different stories, which represented varying concerns, and fragmented reporting from across the country appeared in the press, press notes and in the correspondences between people and administrators. These disparate stories appeared in relatively regular installments. They represented different concerns related to the core plot of the preparation of the electoral rolls. This contributed to the dynamic of a serialisation of the story of making universal franchise. It was a story of a monumental historical significance, grand in scope, and therefore like an epic tale of India becoming a democracy.
These stories stimulated peoples’ engagement with the making of the universal franchise. People began thinking about the universal franchise and to imagine their place on the roll from their personal perspective. Their correspondence with administrators about the preparation of rolls evidenced that. That people also began recognising their power in ensuring the success of the operation was illustrated when a labour union from Madras port, for example, wrote to the government that ‘It will be a waste to the Government both financially and politically if we do not actively extend our co-operation in their attempt for reparation of electoral rolls based on Adult Franchise on which depends the fate of toiling millions…’ (p. 119) This was in the context of their employer’s notification that they would not observe the days declared as public holiday by the government for the purpose of conducting the enumeration. Indeed, the success of the bureaucratic efforts were heavily contingent on the participation of people and their sense of commitment to and identification with the normative vision the universal franchise entailed. To borrow from Parthasarathy’s discussion, the democratic principle this vision entailed had to rest in peoples’ hearts, and be embedded in their minds, before any law or constitution could save it. All this informed peoples’ struggles in pursuit of their citizenship and voting rights on the ground in the preparation of the electoral rolls.
In the context of the contestations for a place on the roll, people essentially already acted as engaged, even passionate citizens, while the constitutional citizenship provisions were still undecided and debated. Since a prospective voter had to be a citizen, the preparation of the electoral rolls at the time was the most concrete and inclusive means by which people could be Indians and feel a belonging to the new state. The first draft electoral roll on the basis of universal franchise was ready just before the commencement of the constitution. It was prepared on the basis of tremendous efforts to include all the adult population. As I state in the conclusion to my book, the all-encompassing national identity of Indians on the eve of the commencement of the constitution was that of being equal voters. ‘The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people’ (p. 5). It is in this sense that Indians were voters before they became citizens. And their identity as such has become, and remained, very meaningful to them. It was not about the legal affirmation of being voters before citizens. In fact, formally-legally that would happen later on when the rolls would be finalised after the enactment of the election law. I therefore agree with Roy that this was not a matter of sequential development. And as Roy shows in her important book Mapping Citizenship in India (Oxford University Press, 2010), the life of legal citizenship in India has remained a contentious matter, and in some respects a thorny issue from the perspective of democracy.
The preparation of the electoral rolls on the basis of universal franchise was indeed a large-scale democratic state building project. In contrast to other state building processes at the time, it was not based on state distinctions between, for example, good or bad refugees; displaced or intended evacuees. There was no distinction between good or bad voters. The principles that underlay the logic of this state building process were equality and universal inclusion. The production of a register of more than 173 million people that were bound together as equal citizens for the purpose of authorising their government rendered existent the idea of ‘the people’, even before they became ‘We the People of India’ with the enactment of the constitution. It concretised, and made real the fiction that is called the people.
I thank Roy for the interesting questions that she raised, and I hope that they have been successfully addressed.
Response to Gautam Bhatia
In his essay, Bhatia discusses the implications of the arguments in How India Became Democratic for contemporary constitutional interpretation. In doing so, he expands Parthasarathy’s analysis of the impact of the book’s themes on Indian constitutionalism. Bhatia addresses the question of ‘how to accurately characterise the moment of constitutional creation’. This question lies at the heart of various issues that came before the Supreme Court over the years, including decisions pertaining to fundamental rights. The Court has debated whether the constitution represents a moment of continuity with past colonial constitutional frameworks and therefore a stage in a constitutional evolution, or whether it was a transformative moment. The former view has prevailed in India’s constitutional jurisprudence. This, Bhatia argues, ‘has a direct impact upon modern-day constitutional interpretation’, and clearly an adverse one, in his view.
Bhatia shows how the view of the transfer of power as incremental and evolutionary enabled the court on various occasions to uphold colonial law, endorse colonial practices and to maintain a restrictive interpretation on fundamental rights. Paradoxically, on the basis of a rather teleological understanding of the moment of the creation of India’s democracy as a stage in a process of evolution, the court sometimes reinstated autocratic forms of colonial rule.
Bhatia argues that the moment of constitution creation was transformative. And that the transformation in the constitutional structure ‘will inevitably affect the overlying substantive legal regime, even though, at the surface, the text of the laws might remain the same.’ It is not, then, simply the letter of the law, but the meaning with which it is imbued in the particular context of that transformation. This is a fascinating argument.
Bhatia suggests three ways in which ‘universal franchise marked a transformation that was not simply a question of degree, but of the very nature of the political society’: the leap in the size of the new electorate; its nature – unlike under all the colonial constitutional frameworks the individual was prior to the group; and its character as universal. To add a footnote to Bhatia’s point about the scale of the transformation in the character of the electorate, the franchise provisions in the Government of India Act, 1935 (Sixth Schedule), contained so many qualifications for being a voter for a divided and restricted electorate that this was sub-divided into 12 parts spread over 51 pages. Underlying his analysis, Bhatia picks up what to me is perhaps among the most, if not the most, revolutionary aspects of the moment of rupture from colonial rule and constitutional frameworks that the making of the universal franchise wrought (and which I already mentioned in my response to Roy): ‘The institutionalisation of procedural equality for the purpose of authorising a government in as deeply a hierarchical and unequal society as India, ahead of the enactment of the constitution turned the idea of India’s democracy into a meaningful and credible story for its people’ (p. 5).
I would like to attempt a small contribution to Bhatia’s arguments about the ways the making of the universal franchise marked a transformative constitutional moment. I will do so by thinking about the ‘constitution creation moment’ as a process. I will dwell here further on some of the points I made in more detail in my response to Parthasarathy.
The transformative nature of the making of the universal franchise also lay in the bold effort of undertaking it in anticipation of the drawing up of the constitution. The preparatory work started from November 1947. This was an extraordinary display of confidence in the fundamental principle of equality for the purpose of voting, and in the universality of the franchise, which marked the biggest rupture from colonial rule and its system of representation without democracy. Taking this leap resulted in a far more fundamental constitutional transformation. As I suggested in discussing the status of the right to vote, the experience of preparation of the electoral rolls on the basis of universal franchise, particularly the realisation of attempted disenfranchisement on the ground must be overcome, drove a radical change in the constitutional provisions for elections and their management. The new provisions, which set up an independent central election commission, was meant to supersede states rights over the universality of the franchise, and to create an institution that would protect citizens’ right to vote.
This roundtable and the questions raised by Bhatia suggest that a closer history of other constitutional provisions might throw more light on the question of ‘how to accurately characterise the moment of constitutional creation’.
 Also see Aditya Sondhi, ‘Elections’, in Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta (eds), The Oxford Handbook of The Indian Constitution, Oxford: Oxford University Press, 2016, pp. 196-200.
 See Bruce Ackerman, ‘The New Separation of Powers’, Harvard Law Review 113, no. 3, 2000, pp. 715– 16; Madhav Khosla, The Indian Constitution, New Delhi: Oxford University Press, 2012, pp. 38– 43.
 H V Iengar, Oral History Transcript, p. 146, Nehru Memorial Museum Library.
This post originally appeared on ICLP and is reproduced here with due permission.
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