Legalizing the Revolution
Creators: Dasgupta, Sandipto
Publisher: name: Columbia University
Year: 2014
Subjects: subject: Constitutional law
subject: Anti-imperialist movements
subject: Constitution (India)
subject: Political science
subject: FOS: Political science

description: This dissertation reconstructs a theoretical framework for the Indian Constitution. It does so immanently, by focusing on the making of the Indian Constitution, taking into account both the demands of its specific historical conditions, and the formal constraints of drafting a constitution. The dissertation shows that in its historical context the task of the Indian constitution makers should be understood as creating a constitutional system that can mediate a transformation of the social condition. Performing this task required reinterpreting the established tenets of constitutionalism. The reinterpretation produces a distinct variation of constitutionalism that is termed transformational constitutionalism. Part I of the dissertation focuses on some of the central tenets of constitutional theory by examining the writings in which they first assumed their paradigmatic form. The concepts are situated in the historical context in which they were formulated to highlight the specific challenges they were a response to, and hence distinguishing them from the conceptual terrain in which the Indian Constitution was formulated. Part I also shows the essentially preservative nature of the main tenets of constitutional thought, and that the fully developed versions of its central concepts seek to preclude any possibility for major changes in social conditions. Part II sets out the historical developments that led to the material and ideational terrain on which the Indian Constitution was conceived. It first outlines the institutional and discursive structures of colonial rule to tease out the development of concepts that would serve as the point of reference for the constitution-makers. Part II then turns to the resistance to colonial rule by focusing on the ideas and politics of M.K. Gandhi to delineate the strengths and weaknesses of Congress's claim to represent the Indian nation at the moment of independence, and outline the two different visions of what it meant to free oneself from colonial subjugation, and the different challenges for bringing those visions to fruition. Finally, Part II outlines the way in which the Indian constitutional vision was caught in an interdependent dynamic of break and continuity with its colonial past. After Part I and II have traced the conceptual coordinates of a modern constitution, and the specific historical condition in which the Indian constitution was conceived respectively, Part III focuses on the Indian Constituent Assembly Debates to show how the framers sought to respond to the concrete challenges facing them by creatively reinterpreting the precepts of modern constitutionalism itself. The dissertation shows that the Indian Constitution has to be understood as a totality containing three related strata - that of constitutional imagination, promises, and text - which exist in tension with each other. This tension constitutes the contradiction at the heart of the Indian Constitutional form. The dissertation concludes by following one such contradiction, between the strata of imagination and text as it developed during the most important constitutional conflict of the initial years on the question of compensation for acquisition of property. It also demonstrates how that conflict fundamentally shaped the nature of Indian constitutional practice.