The Indian Constitution was adopted on 26 January 1950, less than three years after India gained independence from the British Empire.

As with many of its Asian neighbours, the making of the Indian Constitution is considered a pivotal event in the history of freedom from colonial rule, a threshold moment from which the sovereign independent nation began its journey.

Given India's long colonial past, however, one of the central questions that arises with regards to the Indian Constitution, as it does for constitutions of other post-colonial nations in Asia and other parts the world, is: To what extent did the document of the Constitution and the vision that it embod­ied mark a revolutionary new beginning for a sovereign nation? Did it mark a complete break from the colonial past, or, did it, on the contrary, embody and carry on the discursive and institutional legacies of colonialism into the post-colonial political formation? Did the new Constitution guarantee the freedom and equality of citizens and secure their rights viz. a viz. the post­colonial state, thereby reversing the colonial relationship between the state and the people, or did it, in fact, perpetuate that relationship through different institutions?

The Indian Constitution has been at the centre of some of the most conten­tious public debates in recent years about the nature of the post-colonial state, society, and individual freedoms. In the work of scholars engaging and respond­ing to these debates, there is, with some recent exceptions, a marked absence of an historical approach to understanding the Constitution's vision, structure, aims, and limits, and therefore, its implications for the nature of post-colonial politi­cal formation. One of the reasons for this absence is that while most historians of modern India terminate their research at 1947, the year of India's independ­ence, assuming post-colonial political development to be inaccessible to historical research, most studies by political scientists and legal scholars take 1947 as their point of departure, as if the post-colonial political formation had emerged fully formed without any history.^[1256]

Much of the scholarship on the Indian Constitution by political scientists and legal scholars have sought to identify a uniquely Indian contribution to constitutionalism, thereby validating their assumption that the Indian Constitution was indeed a revo­lutionary text in the life of the new nation-state.

While valuable contributions to the study of the Indian Constitution, many of these claims about the ‘revolutionary’ aspirations of the framers are not borne out by the discussions in the Constituent Assembly between 1946 and 1950. So, for example, contrary to Ackerman’s claims, Gandhi’s revolutionary views were in fact largely ignored by the Constitution-framers, many of whom were lawyers trained in the British legal tradition and derived their primary inspiration from British colonial acts and discourses, which were supplemented by borrowed features from the American and other Commonwealth and European constitutions. Indeed, Jawaharlal Nehru, the leader of the Congress Party, independent India’s first Prime Minister, and one of the most powerful voices in the Constituent Assembly, acknowledged that it was not a ‘revolutionary’ body, and that such a body would have to be set up in the future: ‘I do think that [at] some time or other in the future we may have to summon our own proper revolutionary Constituent Assembly.’^[1260] In looking closely at the work of the Indian Constituent Assembly, one is struck by the absence of any attempt by the Constitution-framers to rigorously debate and arrive at a set of constitutional norms, principles, and doctrine that would stand above all state institutions and hold them accountable.

Another important aspect of much of the recent scholarship on the Indian Constitution is the essentialist claim that India is ontologically a ‘deeply divided society’, and, therefore, the process of constitution-making is necessarily differ­ent from Western societies, which in contrast are assumed to be ideologically and culturally united.^[1262] It is noteworthy that this starting premise is deployed in the case of India and also a number of Asian, Middle Eastern, and other non-Western constitutions, while Europe and America are firmly kept out of the scope of a similar analysis. What intrigues these scholars is the ‘remarkable’ and ‘unexpected’ survival of the Indian Constitution for over 70 years, given their foundational assumption of a ‘deeply-divided’ society or alternatively, as the famous economist and one-time American ambassador to India, JK Galbraith called it, a ‘functioning chaos’.^[1263]

This essentialist claim is fundamentally problematic on a number of levels. First, the assumption of unity or division as ontological realities for any soci­ety is an ahistorical claim and ignores the fact that societies in the West are as much historically constructed as non-Western societies. So that ‘deep divisions’ - cultural and ideological - can be found as much in America, the United Kingdom, and other European countries as in the global South.

Second, this claim is based on an imperialist and orientalist epistemology that constitution-making and democracy in their ideal form can only be found in Western nations that are sovereign because they are inherently united.

My contention in this chapter is that it is only through a historical-discursive lens that the specificity and coherence of the Indian Constitution, and its impli­cations for the post-colonial political formation can be fully understood. I argue that the Indian Constitution embodied a discourse of sovereignty and governance at the time of its framing that was in continuity with that of the British impe­rial state. It carried a contradiction at its very heart: even as India had become independent through a mass democratic movement led by Gandhi, the revolu­tionary discourses of people’s freedom that that movement embodied did not find a place in the Constitution. This key contradiction would drive the history of post-colonial India. From this perspective, if the Indian Constitution survived for over 70 years, it is not because there was something ‘revolutionary’ about the Constitution itself, but because the mass anti-colonial democratic move­ment that had been exteriorised by the constitution-makers held the state in check and compelled it to yield to democratic forces. The many amendments to the Constitution and the authority of the judiciary in enforcing the state to comply with people’s demands in the post-independence period are evidence of the strength of these democratic forces.

In this chapter, I focus on the discourse of sovereignty enshrined in the Indian Constitution. I contend that the specificity of the Indian Constitution as a discourse of governance derives from the fact that it was anchored in the excep­tional sovereignty of a category - the category of imperial justice as equity that was in continuity with the British colonial regime. What uniquely characterises the Indian Constitution is that it is tied together by the discursive structure anchored in the concept of imperial justice as equity that historically framed both the discourse of the British colonial government in India and the anti-colonial movement led by the Indian National Congress. The Constituent Assembly’s deliberations and decisions were framed within the discourse of imperial justice as equity.^[1264]

Imperial justice as equity, as it had taken shape in British colonial India was a monarchical principle in which the legitimacy of the state derived from the discretionary benevolence and exceptional power of the monarch to render justice beyond the law, rather than from its claim to represent the people. Developed by the British regime in India, it was a mode of claiming exceptional sovereignty - the power to take exceptional measures that exceeded the bounds of legality. I argue that the institution of justice as equity as the sovereign legislative principle in the Indian Constitution, meant that the Parliament could deploy the logic of exception as a permanent tool in any situation in the name of equity. Soon after independ­ence, the Supreme Court, which increasingly claimed the role of the sole guardian of the Constitution, began to deploy the same logic of exception in the name of equity in its judgments.

This category of justice as equity was anchored in a constructed colonial discourse that India was a chaotic land of inherently warring communities (based on religion, caste, region, ethnicity) that could only be ordered and managed by a neutral and foreign state that was exterior to society rather than deriving from it. Under such a state, any rights that citizens had were not natural rights but the result of the discretionary benevolence of state institutions. Authoritarian by nature, it was opposed to the notion of justice under the law that is based on the democratic idea that the state’s power is derivative of the freedom and equal­ity of all citizens who are the makers of law. My contention is that the makers of the Indian Constitution did not dismantle this colonial epistemology about India but rather built on it. Many of the challenges faced by the post-colonial political formation and its institutions derive from this colonial discursive structure.

In most works on constitutionalism, the question of sovereignty has been posited primarily in terms of a discourse of possession, the central question being, who holds absolute power in the state, rather than how it is exercised as a form of practice that evolves historically.^[1265] With differences in the theoretical perspectives of different schools of thought, the figure of sovereignty has also varied: an indi­vidual (a monarch), a people (a nationality), an institution (the Parliament), or a class (the bourgeoisie, the proletariat or the peasantry). Most recently, however, theorists like Carl Schmitt and Giorgio Agamben have formulated the question of sovereignty in terms of circumstances that require measures exceeding the bounds of legality.^[1266] Sovereignty, in the view of these theorists, is linked to the necessity to make exceptions to the general rule in concrete circumstances, and the sovereign is whoever decides what constitutes an exception.^[1267]

In the dominant approaches, the issue of sovereignty has been studied over­whelmingly in terms of the sovereign's will and his power to coerce, as power that is exterior to discourse.^[1268] However, as recent theorists and historians have shown, modern power operates as much through discourse as through violence. Exceptions are not stripped of discourses altogether. Rather, a category itself can take on the position of an exception suspending all other categories that may appear to come in its way in the face of a challenging crisis. In other words, the question of ‘who' decides on what constitutes the exception can very well be deriv­ative of the sovereignty of a category itself.

Rather than looking at sovereignty, then, simply in terms of ‘who' - the insti­tution or the person - decides on the exception and therefore possesses final authority in a state, a more adequate approach may be to see it as a complex discursive formation involving ever-shifting alignments of conceptual networks and institutional practices that evolve historically and as such vary, often in subtle ways, from one polity to another.^[1269] To understand the meaning of the category of justice as equity, and how it came to be the sovereign category in the Indian

Constitution that determined the institutional and discursive networks of the post-colonial polity, it would be important to briefly discuss the historical context in which the Indian Constitution was written.

I.