Justice as Equity, the Primacy of the Community, and the Subordination of Individual Rights
While the institution of the Parliament configured in the image of the imperial monarch was the source of justice, the recipient of justice as equity for the framers of the Indian Constitution was not the individual, but the community, the group.
This derived from the fact that the Constitution saw the community as the fundamental unit of the nation, not the individual. The discussion of justice as equity in the Indian Constituent Assembly is notably distinct from its Western counterpart in that it is deployed not for the benefit of the individual - as in the historical juridical deployment of equity - but rather to provide substantial justice to the larger group, whether community, caste, tribe, ethnic or linguistic group. In effect, Parliament was being given the power to suspend or override the universal provisions in the Constitution relating to the individual rights in favour of substantive equity to the community.Indeed, looked at closely, what seemed like individual rights in the Constitution were in fact, at least partly, group rights. It is important to note that the Nehru Report of 1928, the Karachi Resolution of the Indian National Congress of 1931 and the Sapru Report of 1945 - three documents from which the Constitution derived many of its clauses - all looked at the question of rights not so much with the individual’s freedom in mind, but rather as a safeguard to create a sense of security among members of different communities.[1313] The Sapru Report, for example, had stated that the fundamental rights of the new Constitution would be a ‘standing call’ to all that:
What the Constitution demands and expect is perfect equality between one section of the community and another in the matter of political and civil rights, equality of liberty and security in the enjoyment of the freedom of religion, worship, and the pursuit of the ordinary applications of life.[1314]
Thus, one of the most important rights included in the section on fundamental rights, the freedom of conscience and religion was initially conceptualised not in individualistic terms, but rather to prevent one community from dominating another.
In other words, part of what came to be known as fundamental rights was directed not to the individual as a citizen of the nation but as a member of his community.The general ethos of legislative representation grounded in group identities came to be reflected in the composition and debates in the Indian Constituent Assembly.[1315] Overwhelmingly, members participated in debates not as representatives of India as a nation but rather as representative of specific religious communities, caste groups, and tribes. While elaborating on the aims and objectives of the Constitution Sri Biswanath Das, a member of the Constituent Assembly, pointed out the nature of the Assembly in December 1946:
We have in this great Assembly not only the representatives of the Hindu majority provinces but also the representatives of Hindu minorities in Muslim majority provinces. We have also the representatives of Schedules Castes, Christians, Sikhs, Parsis, Anglo-Indians, and of Tribal and partially-excluded areas. We have amongst us also the representatives of the great Muslim community barring the leaders of the Muslim League.[1316]
The pervasive political ethos that post-colonial India was made up not of citizen individuals, but rather of communities, as reflected in the framing of the Indian Constitution was not, however, a construction of the Congress. Rather it was Congress' imperial inheritance.[1317]
In the system of legislative representation instituted by the British in India in the late nineteenth century, Indian members were nominated by the colonial government to the legislative council based on their social and religious identity. This system of group or communal representation in the legislative council later came to be institutionalised in the idea of separate electorates for different communities, articulated in the Morley-Minto Reforms of 1909, the Government of India Act of 1935 and the Cabinet Mission Plan.
These acts, including the Government of India Act, on which the Constitution was based, it is important to note, were not just legal documents: rather, in them was embedded the British imperial conception of India as a heterogeneous collection of random communities locked in their irreconcilable conflicts with each other. India in this conception was not a nation, and if it was united and at peace, then that was because the British colonial state as foreign and, therefore, neutral and impartial judge was able to enforce peace in the name of justice.
In the politics of electoral representation in India the British Empire had discovered a new domain for its imperial statecraft. By introducing representative or electoral politics the British Empire could fulfill two seemingly conflicting imperial aims at the same time: on the one hand it could claim that it was fulfilling its longstanding promise as part of its general pedagogical mission in India to slowly introduce the elements of political freedom or self-governance, valorised as the highest achievement of the Western civilisation. On the other hand, by anchoring the discourse and practice of representation in the community, rather than the individual, it could at the same time divide Indian civil society even more deeply at the broadest level along communal, sectarian, ethnic, caste, and linguistic lines.
This division was intended to pre-empt any possibility of now ever-proliferating communities from coming together to demand national independence from the British Empire. More ‘freedom’ meant deeper divisions between the communities and therefore more dependence on the British Empire to unite them; more freedom, in other words, necessitated a stronger Empire. As Somnath Lahiri stated in a memorable phrase in the Constituent Assembly, ‘There is no freedom in this country.... We have freedom only to fight amongst ourselves’.[1318]
It was in this precise historical and political context of India as a British colony that the notion of freedom came to concede its claim to the categorical sovereignty of justice as equity. Whereas ‘freedom’ seemed to accelerate the process and extent of social and religious divisions, justice as equity anchored in the figure of the imperial monarch offered a point of unity. So far as the communities’ relation with the state was concerned, justice remained the sovereign operational category.
It is often assumed that because the Directive Principles of State Policy were addressed at substantive justice rather than formal equality, what motivated their inclusion in the Constitution was the ideology of socialism that had acquired substantial currency in India.
While socialism was indeed an intellectual inspiration for certain sections of the Congress, yet, note that the concept of socialism did not find a place in the Objectives Resolution or in the Directive Principles of the Indian Constitution at the time of its framing.[1319]The discourse of justice as equity and the discourse of socialism were not homologous. The most important difference between the two discourses was that while in socialism legislation and law were based on the principle of universality that assumed the unity and uniformity of the civil society, the discourse of justice as equity did not have universality as its legislative principle; it was crafted for a society that was assumed to be divided into communities that needed legislation to be tailored to their specific needs. Indispensable to the discourse of justice as equity is the notion of India as a collection of random communities in conflict with each other.
The Constituent Assembly, which was also the Congress, did not take the moment of independence as an opportunity to question the colonial construction of India as a land of perpetual conflicts of identities based on religious groups, castes, languages, and regions. Rather they accepted the British characterisation of India as a fundamentally divided society at war with itself. As Dr Bhimrao Ramji Ambedkar stated in the Indian Constituent Assembly, ‘I know today we are divided politically, socially, and economically. We are a group of warring camps, and I may go even to the extent of confessing that I am probably one of the leaders of such a camp’[1320]
V.