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Law

One Before All

Gautam Bhatia is a lawyer and research scholar at Oxford
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Placing the individual, not society, at the heart of the Constitution


The Transformative Constitution: A Radical Biography in Nine Acts| Gautam Bhatia | HarperCollins India | 544 pages | Rs 699

THE TRINITY OF liberty, equality, fraternity was a familiar one, from the time of the French Revolution. But in his closing speech to the Constituent Assembly on 25 November 1949, the day before the Constitutionwas adopted, BR Ambedkar articulated what these words meant to him:

Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality, and fraternity as the principles of life. These principles of liberty, equality, and fraternity are not to be treated as separate items in a trinity. They form a union of trinity… liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative… Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.

In this paragraph, I contend, Ambedkar distilled the heart and soul of the Indian Constitution. Liberty, equality, and fraternity were the three mutually reinforcing pillars upon which the edifice of the Constitution was erected. All three were equally integral. Each of them could be understood only in the context of the other two.

The Constitutional Trinity

Liberty was simple enough. In its classic sense, it referred to that threshold of individual freedom that the State could not cross. And so, we had our Rights to Freedom, guaranteed by Articles 19 to 22 of the Constitution. But in order to ensure that the fruits of liberty were accessible to all, the government would also have to commit to equality of status. This was especially true where the laws themselves had long sanctioned discriminatory and unequal treatment: between men and women, rich and poor, white and brown, caste and caste, and the loyal and the disloyal. And so we had our ‘Equality Code’, contained within Articles 14 to 18.

But in a country where the most invidious discrimination had been the product of community sanction, where the social and economic boycotts had been the chosen methods to discipline and to punish, and where society was defined by a system of ‘graded inequality’ (Ambedkar’s words), it was never going to be enough to direct the State to act by the principles of liberty and equality. Fraternity was the bridge that would make liberty and equality become ‘the natural course of things’. As Ambedkar visualised it, the principle of fraternity would interrogate, undermine, and eventually break down the hierarchical social relations that, over the course of centuries, had come to be treated as ‘natural’. Fraternity would reject ‘forms of domination’, characterised by ‘social patterns, power relations, and other systematic (structures)’. These forms were not imposed by an authoritarian and visible State, but owed their force to silence and slow time, to the insidious and often invisible social processes that, having accumulated over millennia, sometimes by coercion and violence, and sometimes by co-option and hegemony, now possessed the immovability of mountains.

What was the purpose of the State guaranteeing liberty if, at the first attempt at exercising their new-found freedom, communities faced excommunication, boycott, and violence? What was the point of promising equality and non-discrimination if the force of convention continued to restrict women to the ‘private sphere’? And what would liberty and equality do for a labour force that remained bound by exploitative and unequal workplace relationships? This was where fraternity came in: to liberate and equalise the individual, not from or with respect to the State, but with respect to her community, her family, and her workplace, so that the guarantees of liberty and equality meant something more than a rope of sand. This fundamental truth was enunciated by Dr S Radhakrishnan in his opening speech to the Constituent Assembly as early as December 1946. While commending the Objectives Resolution (the blueprint of the Constitution) to the Assembly, Radhakrishnan observed, ‘We wish to bring about a fundamental alteration in the structure of Indian society… to abolish every vestige of despotism, every heirloom of inorganic tradition’. And so we had a right against economic exploitation (Articles 23 and 24), the prohibition of untouchability (Article 17), and a guarantee against economic and social boycotts (Article 15[2]).

The role of fraternity was to ensure that, in India, liberty and equality would come to mean something real. Indeed, this understanding of fraternity was put to the test as early as 1948

While fraternity was the bridge that would make liberty and equality meaningful, its role was not merely auxillary. Ambedkar’s reference to the ‘union of trinity’ reflected the insight that the content of liberty and equality (which were otherwise abstract terms) would be shaped by fraternity. For example, when the State guaranteed to all the ‘equality of opportunity’, could it ignore the many centuries of social discrimination that had left some individuals in a far better position to take advantage of this ‘equality’ than others? Would the constitutional commitment to equality, therefore, be better understood as a commitment to affirmatively overcoming the structural and institutional barriers that had existed, and continued to exist, between India’s citizens and the promise of equal treatment? Similarly, could the venerable principle of the ‘freedom of contract’, as an aspect of personal liberty, continue to remain oblivious to the imbalances of social and economic power that defined the relationship between employers and employees?

And the dependence was mutual. Fraternity itself could not be defined in isolation from liberty and equality. In particular, fraternity was not—as some of the French revolutionaries imagined it, and as some Indian judges have understood it recently—about promoting a one-for-all-and-all-for-one vision of the nation, where the State itself became personified as ‘a common endeavour’. Rather, the role of fraternity was to ensure that, in India, liberty and equality would come to mean something real. Indeed, this understanding of fraternity was put to the test as early as 1948. When the Draft Constitution was published in February of that year, it was thrown open for public comment. Led by B Pattabhi Sitaramayya, seven members of the Constituent Assembly wanted to rephrase the fraternity clause of the Preamble to put the words ‘unity of the nation’ before ‘dignity of the individual’ instead of the other way around. BN Rau, who was charged with vetting all the suggestions, rejected the proposal. He argued that ‘the reason for putting the dignity of the individual first was that unless the dignity of the individual is assured, the nation cannot be united’. Following his advice, the original phrasing—‘FRATERNITY, assuring the dignity of the individual and the unity of the nation’— was retained by the Drafting Committee, and finally adopted by the Constituent Assembly.

To avoid being ambushed by attractive, but ultimately doubtful, interpretations of liberty, equality, and fraternity, it is crucial to understand, as BN Rau did in 1948, that despite its numerous references to ‘groups’ and ‘denominations’, it is the individual that is placed at the heart of the Constitution’s Fundamental Rights chapter. The framers of the Constitution were aware of the fallacy—which Western political theory would discover a few decades later—of treating individuals as abstract and disembodied beings, existing in a world without communal ties. They were aware that human beings only made sense of themselves and the world around them through the bonds they forged with others, and through the communities to which they belonged. For this reason, the Fundamental Rights chapter contains explicit safeguards for minorities to preserve their culture and way of life and for religious denominations to manage their own affairs. That does not mean, however, that the Constitution treated groups and communities on a par with the individual. Indeed, specific proposals to that effect were rejected, and Ambedkar expressed his relief that ‘the draft Constitution has… adopted the individual as its unit’. And it was this sentiment that was expressed most eloquently by Justice Vivian Bose (again) in his dissenting opinion in Krishnan v State of Madras:

Is not the sanctity of the individual recognized and emphasized again and again? Is not our Constitution in violent contrast to those of States where the State is everything and the individual but a slave or a serf to serve the will of those who, for the time being, wield almost absolute power? I have no doubts on this score.

This basic point is reflected in the Preamble. The Preamble promises to secure to all the citizens of India liberty, equality, fraternity (and justice). It makes no mention of peoples, nations, groups, communities, denominations, or religions. The three pillars of liberty, equality, and fraternity hold up an elaborate constitutional structure that places the individual front and centre. That is how we must understand and interpret the transformative Constitution.

(This is an edited excerpt from his book The Transformative Constitution: A Radical Biography in Nine Acts | HarperCollins India | 544 pages | Rs 699)

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