“Do you think a liberal constitution was thrust upon an illiberal citizenry in 1950”? Amit Varma asks this in almost every episode of his fantastic podcast, ‘The Seen and the Unseen”. The discussion leading to this makes it a rhetorical query. There’s hardly any debate. Most guests agree with Varma’s assertions. We were an illiberal society at the time of independence, and a well-meaning group of elites self-anointed themselves as ‘we, the people’ in a breath-taking display of arrogance. That we could never organically accept these values that were imports is then used to explain away several current social and political faultlines.
Does this easy attribution stand up to a deeper scrutiny?
In the 90s, Joseph Overton developed a framework (Overton Window) that’s useful to investigate this. Simply put, there’s a window of ideas at any time that’s acceptable to the mainstream. Lawmakers discern where the window is and act on policies within that range. Those who support ideas outside the range must expand the window to envelop the unacceptable idea. For instance, in 2019, the idea to decriminalise Section 377 was within the Overton window in India. This wasn’t the case in 1999. The window shifted over time as social norms changed through a mix of activism, exposure and acceptance of homosexuality. Arguably, the notion of same sex marriage is still outside the window. Proponents of this idea must strive to shift the window to make it acceptable. A lawmaker who tries to legalise same sex marriage today will consequently fail.
The crux of Varma’s argument is this – the core values enshrined in our constitution were outside the Overton window in 1950. We weren’t ready as a society to embrace equality and liberty as the constitution laid out. Fair enough. But Varma doesn’t engage with an imperative that should be raised when debating a past event. What is the counterfactual? If not this, what then?
The debates among members of the Constituent Assembly covered a wide range of opinions and biases. On any topic, it wasn’t unusual to have members reflect on what would be socially acceptable to the mainstream. For instance, there were rigorous debates on universal adult franchise and rights of women (incidentally, the women members of the Constituent Assembly spoke for only 2% of time). There were strong proponents of mainstream view that supported limited franchise (H.V. Kamath had his views on illiterates) and circumscribing of women’s rights within what was religiously acceptable. This shouldn’t surprise us. Many members had cut their teeth in electoral politics in the provincial elections of 1937. These elections were keenly fought and Congress despite its pre-eminence won only 707 out of a total of 1585 seats. These members knew the pulse of their electorate.
Yet, they went with unacceptable choices outside the Overton window for a simple reason. The constitution provided a once in a lifetime moment in our history to press reset. To have chosen incrementalism at this moment would have been a huge lost opportunity. For a moment, consider the alternative option of going with the mainstream view? Would it have meant a greater acceptance of the constitution? Possibly. By whom? The entrenched interests. To what avail? Would we be sure 70 years later the society would have progressed enough for us to have eventually arrived at the same constitution that we have now? The weight of evidence on our progress on other norms that weren’t mandated in the constitution suggests otherwise.
Society unlike a market can’t be left to the enlightened self-interests of individuals to find its equilibrium. Social failures have deep roots where the definition of individual self interest has been distorted through centuries of conditioning. They are often strongly coupled with economic interests of the dominant group that perpetuates these failures. Social failures are deeply abiding.
It isn’t that we were the first to craft a constitution that attempted this. The American constitution had lofty ideals drafted into it from the start. The colonial society that it sought to govern was deeply illiberal (remember, the founding fathers themselves owned slaves). The path America took through Civil War, Reconstruction and Civil Rights movement over the next two centuries was to strive to bring the society at par with the ideals of its constitution. The arc of justice, like King said, bends towards justice. But it takes time.
Our constitution was an opportunity to forge a tool for social revolution. Its success since independence, however limited it may seem, in effecting a change should be weighed by the counterfactual. What if it had been merely a socially acceptable legal document to govern India? We could argue the reason for the ascendance of deeply illiberal forces today is because the constitutional values were never accepted in their truest sense by the majority. However, the absence of these values from the Constitution would have plunged us in to a deeper heart of darkness, possibly, much earlier. What’s worse, we wouldn’t have had a book to hold on to that articulated in detail what kind of an India we should aspire to become. There would be no true north then.
As a long-time listener and admirer, I would really like Varma to engage with the counterfactual to his question with his guest next time. How would the alternative have played out given the lived experiences of the nation? The discussion will help our thinking on policy options for societal failures we face today. It will also take away the pat reason for the backlash we see today on liberal values – we weren’t ready for it in 1950. The truth is we will never be ready for it.