Sujata Gadkar-Wilcox Discusses the Indian Constitution

January 14, 2016

Jawaharlal Nehru signing the Indian Constitution in 1950.

ALEX WOODSON: Welcome to the Carnegie New Leaders Podcast. My name is Alex Woodson. The Carnegie New Leaders Program provides enrichment opportunities for the next generation of leaders who are interested in exploring the ethical dimensions of issues relating to business, foreign policy, and economic development.

Today I am joined by Carnegie New Leader Sujata Gadkar-Wilcox. Sujata is an assistant professor of legal studies at Quinnipiac University in Connecticut. She recently spent some time in India on a Fulbright scholarship researching the formation and drafting of the Indian Constitution of 1950.

Thank you for coming, Sujata.

SUJATA GADKAR-WILCOX: Thank you so much for having me, Alex.

ALEX WOODSON: Just to start, what led you to this project? How did you become so interested in the intricacies of the Indian Constitution?

SUJATA GADKAR-WILCOX: There are a couple of things that led me to the project. On a personal note, my family is Maharashtran, from the state of Maharashtra in India. I'm very fond of Dr. Bhimrao Ambedkar, who is also a Maharashtran and is known as the father of the Indian Constitution because he was the chairman of the drafting committee.

My grandfather actually was involved in the student protests at the time before independence and attended himself the "Quit India" speech, and often spoke very kindly of Gandhi, of course, as many do in India. I learned all this about my grandfather from my husband, who is a historian, and I started to get more intrigued.

My father is also from a lower-caste Hindu family. His educational opportunities were really advanced by the reservations that they had placed in the constitution itself. Those reservations work very much in the way affirmative action programs work in the United States for what they called scheduled castes or backward-caste, lower-caste individuals, in that there are reservations for an actual number, so it's like a quota system. Those reservations, in fact, had helped my father educationally. There are reservations in the political system as well, and in education and other public administrative positions.

Those things have always fascinated me about the Indian Constitution.

I think the Indian Constitution was made at a moment—there's a colleague at the Jindal Law School who says it's a very "presentist moment." I think so much was happening at the time of independence. Along with the partition, this transfer of power, it was in fact both a nonviolent and very violent time because of the partition. It was also a time when much of the struggle, for independence at least, had come to an end. The country was still struggling because of the economic and political condition that remained. But there was so much room for hope. So it was a very presentist moment.

I'm not a historian, but the first part of my research really focused on these historical records. For me it reminded me of a time—particularly now I think it's more important—when politics was really about a responsibility to the people. I think because of this transition, particularly from a postcolonial context, this transition of power, those framers—they get critiqued now for seeking power and abusing that power to some extent—very much understood and took very seriously that responsibility and that burden to the people and to make a better society.

So when you read these documents, you see a spirit in the constitution and the law that is something that, if you are a critical scholar and you see the problems of the over-rationalization of law and the hegemony of law, it actually gives you that moment of hope that there is some way that individuals can somehow reorient or change constitutional principles to adapt to a new society. So it's that moment in time.

Not to say the document that came out of that is perfect, but I think the spirit of that very much supports an understanding that they were attempting to create a better society. I think the document reflects that.

I've always been very fascinated with the Indian Constitution itself because it reflects this balance of how do you get to that society—how do you control too much power in the center, but then also have enough power in the center where you have a real social welfare state and you really break down the inequalities that have now been so entrenched in this postcolonial context. I find all of that fascinating, both professionally in a scholarly way, looking at the document itself. But then also from my own background I have been drawn to the constitution.

And of course, Ambedkar, for lower-caste Hindu families as well, has really just been a model. In fact, I think there are—I don't know if there are more statues, but there are as many statues of Ambedkar in India as Gandhi because he is revered. He is thought of sort of in the same manner as Gandhi in a saintly way. He is thought of as a saint. I don't necessarily think that all political figures need to be—we don't need to create idols. But for me it's important to see the kinds of struggles that they went through to create the kind of document they created and how that influenced the kind of society they envisioned. It's interesting.

ALEX WOODSON: So part of your argument is that the document itself incorporates the lived experience of the framers. You mentioned Dr. Ambedkar. He is someone who personally I didn't really know too much about before I started researching for this interview. I know about Gandhi and Nehru, of course.

Could you just tell us a little bit more about why he is so revered? You said he's from a lower caste?

SUJATA GADKAR-WILCOX: Yes, he's from a lower-caste Hindu family. He actually coined the term Dalit for the untouchable caste.

It's interesting that you say that, because I was just thinking back to my students. We just had a human rights workshop this semester. Our main speaker who came gave a talk about Ambedkar. So many students who came to the talks said, "This is the first time I've heard of Ambedkar. I've always heard of Gandhi, I've always heard of Nehru, and why is this the first time I'm hearing about him?"

But I think he is so revered in India particularly because he has overcome so many obstacles. Being from a lower-caste Hindu family, you face a lot of discrimination, in the sense that opportunities are generally closed. You know, people know who you are in a community setting from your last name, from your family, orientation. So opportunities tend to be closed off to you if you are not in the right circumstances, particularly when there is the bias of the caste hierarchy on top of it.

And yet, he was obviously a very brilliant man, because he was able to overcome that through education. He was able to then get a scholarship from the king of Baroda to study abroad. So he has in fact two doctoral degrees. He studied at Columbia University with John Dewey for some time. So when I say the lived experience, you can see the legal pragmatism actually in the document itself that comes from him. You also see this in the document.

He differed from Gandhi very much, in the sense that he didn't really trust local communities. India wasn't ready, I think—and I think for Gandhi too; Gandhi didn't think that even 1950 was the moment when India was ready for the kind of transition of power that he ultimately envisioned.

I think for Ambedkar, though, particularly because Ambedkar faced so much discrimination in his life, leaving things to a local community becomes very problematic because you have a community that's not fully educated that then has biases that come from religious understandings that then increase intolerance against anybody who's a minority or who's in a lower caste, particularly in the majority Hindu religion.

So for Ambedkar, the focus of the federal government really had to be on a central unitary government. So what you see in the Indian Constitution is a very interesting mix. You have a federal system, where you have a bifurcation of power between the central and the provincial governments, but it's a very unitary core. The central government was really supposed to be the one that was creating the policy agenda.

I think that really does speak to a bigger concern, that if you want to create a social welfare state and if you want to break down inequalities, that has to come from the central government. It can't come from regional governments because that oftentimes increases intolerance and increases structural inequalities.

That very much informs the constitution. So you have a federal system similar to what they actually have in Canada, where you have a federal system but it's very unitary in nature. The Parliament is really supposed to be the supreme branch, the branch that's responsible to fulfill its obligations to people.

ALEX WOODSON: One of the other features of the Indian Constitution—if you look this up, this is one of the first facts that comes up on Google—is that it's the longest written constitution, 395 articles, 100 amendments, 80,000 words. Is this just fun trivia or does it really mean something, does it really say something about Indian society or the document?

SUJATA GADKAR-WILCOX: Yes, actually it's quite critical. It's an important aspect of the document that it's so long. I think that's because what they ultimately wanted out of the constitution was a social transformation.

This is a very different context than the United States. You have a context of, in some sense, extreme economic disparity. So it cannot be a constitution that doesn't focus on economic and social rights. Whereas the U.S. Constitution focuses heavily on civil and political rights, there isn't a constitutional right in some sense to particularly economic rights, because there was less of a need to focus on that.

Whereas in the Indian Constitution, because there was an obligation to create this kind of social transformation and because they had to focus on those economic policies, what they really did in the Constitution itself was create a lot of administrative detail to make sure the body responsible for that would be the legislature.

Again, they were very concerned with what would happen if a constitution that's as short as the Constitution of the United States got into the hands of the judiciary. In fact, they knew what happened. The really interesting thing about the Indian Constitution is it was written on the world stage. They basically researched every constitution in the world. They are also critiqued for this.

The framers, most of the members of the Constituent Assembly, many of them were trained in Western law. Many of them were trained abroad. Many of them studied in London. Ambedkar studied at Columbia with John Dewey. So these are people who are very familiar with international legal standards.

There was a constitutional advisor, B. N. Rau, who in fact often communicated with jurists in the United States. One of the things that was brought up to him by a judge is to be wary of due process and to be wary of the Supreme Court, because if you don't identify everything you want the constitution to do and it gets into the hands of a court when you've accepted a system of judicial review, which they did in the Indian Constitution, then the court can be free to interpret as they do. Then what we see in the United States is an entire jurisprudence of substantive due process which has been interpreted into the constitution.

So what they were really wary of at that time was they wanted the transformation to come from the government, from the Parliament. They didn't trust the courts. Again, someone like Ambedkar didn't trust the local communities. So it had to all come from Parliament. How do you do that? You do that by creating a really detailed administrative document that makes it clear exactly who has what power.

That's why it's important that it's the longest document. It's not just because they decided to write on and on. It's because they were in fact concerned with control. That control was not just for power. They get critiqued ultimately because of course that becomes too much control and then there is an abuse of power. The Congress Party, in fact, just lost the recent election because of these concerns of the abuse of power.

This is why the historical documents are so important. If you look at the historical documents of the time, you see that these framers, many of whom were freedom fighters, really struggled with this duty, and they felt, particularly for someone like Nehru—he admired very much the Emperor Ashoka, who focused very much on his dharma, meaning his responsibility, his moral obligation to his people.

So he really felt very much that that moral obligation and that responsibility to create that social transformation has to come from Parliament, has to come from the central government, because they can do it best, because they will be above the sort of communal tensions, they will be above religious sectarianism, they will be able to break down the barriers that local communities can't break down. Ambedkar was very much on board with that as well, because of course he faced a lot of that discrimination himself.

So that's why they have this very detailed document and it's very long, because, in fact, they wanted to avoid what happened in the United States. They wanted to avoid the judicial interpretation that comes from having a very short document, because when you have a very short document—of course we have constitutional rules that go well beyond the written constitution, but you have to look to the constitutional jurisprudence, and where does that come from? It comes from the courts. They didn't want it to come from the courts. They wanted it to come from Parliament. So that's why they did it that way.

ALEX WOODSON: You mentioned the U.S. Constitution being very short as a key difference between the Indian Constitution and the U.S. Constitution.

SUJATA GADKAR-WILCOX: Yes.

ALEX WOODSON: Just building off of that, there is obviously a huge debate in America about the Second Amendment, the right to bear arms; the First Amendment gets talked about a lot too. But there is a sense among a lot of people that the U.S. Constitution is kind of a sacred document—you can't change it; if you're going to change it, obviously it's a lot of work to get an amendment passed.

A two-part question: Do the Indian citizens see the constitution in the same light that Americans see their constitution, as kind of this holy document? And just going along with that—I think you alluded to this in your answer before—what are some of the constitutional debates that are happening in India today?

SUJATA GADKAR-WILCOX: Let's start with the first one. I think that they do look at it in a similar way. I think that the framers, the members of the Constituent Assembly, because many of them were leaders in the independence movement, freedom fighters, are very well-respected. I think that does mean that there is a spirit of the constitution that people really adhere to and respect.

The courts have sort of reinforced what they call the basic structure of the constitution. So provisions on fundamental rights are considered to be almost higher lawmaking, in the sense that they are above ordinary politics. So there is a sense that there are protected rights that are above ordinary politics.

In fact, the Supreme Court in India has ruled that the Parliament itself cannot—there was a question of what was the extent of judicial review, and the Court itself had ruled that there are some basic features of the constitution that cannot be contravened by Parliament, by the legislature, which undermines parliamentary supremacy. So there was a big debate as to whether or not that is in fact the proper role of the court.

But I think generally it is accepted that there are basic features of the constitution that cannot be overturned, even with the understanding that this is a very different federal system than in the United States, with basically parliamentary supremacy but also with this additional feature of judicial review, where the courts have come and said that things that are constitutional are beyond the jurisdiction of Parliament.

It's interesting, because the courts in some ways have maybe gone beyond the powers that of course—and as I mentioned, the reason that the articles on the judiciary are so long is to actually in fact control the power of the courts. But the Supreme Court goes on in many instances to be one of the most activist courts in the world. I think it's interesting that the framers probably didn't intend for that to happen, but yet it's the spirit of the document, in the sense that there is a responsibility to the people and a responsibility and an understanding that we promote these kinds of rights and a breakdown of economic inequality. There's a social welfare idea that the courts pick up on. So they pick up on the responsibility, and that's what I think actually justifies the kind of activism, because that in fact is the spirit of the document, that there is sort of this protectionist mode.

The United States is interesting. I have students who say this all the time: People do hold on to the sanctity of certain amendments, but they also hold on to what is a common understanding, or sometimes misunderstanding, of particularly—and of course, now today the debate is the Second Amendment.

But it's often also the First Amendment. I always hear students say, "There's no limit to the First Amendment; I can say whatever I want." In fact there are limits. And if you look at the constitutional jurisprudence, you will see that there historically have been limits in certain areas and not others. That might be a debate that's worth having. But you first have to know that that's the case before.

So people, I think, do hold on to sort of the basic idea of some of these rights. But I'm not sure that they are aware of the extent to which the contours of those rights have been reinterpreted. This is where the Supreme Court in the United States really has a lot of power to interpret very limited provisions.

In two recent cases, for example, just with the First Amendment, the notion that corporations have First Amendment rights, the Citizens United case and the new Hobby Lobby case extended this idea that as a corporation—corporate personhood is just a legal fiction. So did the framers ever really intend for corporations to have that kind of First Amendment right? It's obviously still very controversial. But that's an interpretation of a very thin phrasing in a document.

I think people hold on to what they want to interpret that brief phraseology to mean. So there's a spirit there to the American Constitution too about a limit to government, but actually, if you look at the jurisprudence, I think it's much more complicated than that.

ALEX WOODSON: Of course.

SUJATA GADKAR-WILCOX: I think India is the same way. I think people hold on to what they think is sort of the core of the document. Those ideals are fundamental. They're fundamental also because they respected these freedom fighters and they respected the framers. But there's so much more to it than whatever those core ideals are.

The next time I go back—I haven't looked into yet and this is what I am curious to see, as to whether or not that language is used very often.

So we do hear—at least I hear, I can say anecdotally, even from students—routinely this notion of rights, a reference to Fourth Amendment rights, a violation of Second Amendment rights, First Amendment rights. You hear that commonly in newscasts as well. I'm not sure whether the rights language is utilized in the same way. Again, a lot of these framers focused heavily on responsibilities and obligations along with rights. So, in a sense, they sort of reoriented the way rights were understood. It wasn't the Lockean understanding of rights, in the sense that we are endowed with certain natural rights that then provide checks on the government even of themselves.

A Gandhian understanding of rights actually says that those rights are contingent upon a duty that you then have to others, which is a very different understanding of rights. So the duties and the rights are corollary and they go together and you cannot claim one without the other.

So you do see more there—this again is anecdotally, because I haven't looked into it—but more sort of a question of who is responsible and who is failing their responsibilities, failing their obligations. So in the next part of my Fulbright research I would like to do this sort of discourse analysis to see how that is being used and to see how rights are in fact understood and whether they are understood in the same way or not.

ALEX WOODSON: Just keeping with today, I know that Prime Minister Narendra Modi is seen by some as maybe more nationalistic than other prime ministers, focusing a lot on the Hindu religion.

SUJATA GADKAR-WILCOX: Right.

ALEX WOODSON: Has he come up against any limits of the constitution? Are there constitutional debates going on around his authority?

SUJATA GADKAR-WILCOX: Well, not around his authority. Of course there are these debates and controversies as to whether or not there should be constitutional amendments based on an interpretation of the constitution that people don't agree with.

I should preface that by saying that it is much easier to amend the Indian Constitution than it is to amend the U.S. Constitution. Oftentimes it's just by a simple majority in the houses. So it's not the same thing as the U.S. Constitution.

But I think the controversy around Modi really comes from his approach, his focus on nationalism, and again, as you mentioned, he is representing the BJP (Bharatiya Janata Party/Indian People's Party) and its focus on an increase of religious intolerance because, focusing on Hindu principles, and those principles are now supposed to be sort of the founding principles of a secular country.

The Indian Constitution is very clear that it is a secular document, it's a secular country. They will respect religion sort of running parallel as long as it doesn't contravene the constitution. But it is a secular country. So there they run into problems.

I think you can see the biggest distinction between the parties. You could see it in what they've just deemed Constitution Day, which is November 26. November 26 is when the actual document was signed in 1949. They are coining that now Constitution Day. They were also celebrating the 125th anniversary of Dr. Ambedkar.

They had speeches in Parliament. The speeches that were made by the Congress Party, by Sonia Gandhi, who is leading the Congress Party, and by Modi in particular and by other BJP members really show you the sharp distinction in the parties. What you see from the BJP is a calling out of Congress for an exploitation of power, which is what happened under Indira Gandhi.

Again, Nehru's vision of consolidating power in the middle often means that it is quite easy to abuse that power and to overreach, and so they always get called out on the overreach of power, and then also the corruption. The reason there was a landslide victory for Modi in this last election was because I think people were getting fed up with the corruption scandals that were coming out one after another involving the Congress Party and Congress Party members. He ran on a very strong anti-corruption platform.

I think even for progressive Hindus—I would say my family—I don't think that they are really interested in fundamentalist BJP politics, but they are very much interested in anti-corruption. For some reason, whenever I talk to them about these issues, they are always willing to overlook the religious intolerance, maybe because they're in the protected dominant religious group, because the anti-corruption policy is so important to them.

So Congress really lost a lot of footing with these allegations of corruption. Because Modi ran on such a strong anti-corruption campaign, I think particularly because it is still a predominantly Hindu country, even though it's a secular country—and I don't know for sure, but I wonder if people are willing to overlook the aspect of religious intolerance that may be rising because they are trying to get away from the political corruption.

You can see that in the speeches. You see in the speeches from Sonia Gandhi the focus was on secularism. She said: Look, this is a secular country, this has always been a secular document, the constitution has always cherished this idea of secularism. Then, on the other hand, you have the BJP saying: Yes, but look what happened with the Congress Party; there's too much overreach; we can't have too much centralized power because then that leads to its own kind of corruption, and we can't use the word secular for our own political ends.

So you really see in the speeches between the two of them what the distinctions are for the party and how they view each other, which I thought was kind of interesting.

ALEX WOODSON: Just to wrap up, you are going to be going back to India in May 2017?

SUJATA GADKAR-WILCOX: In May 2017, yes.

ALEX WOODSON: Between now and then you are teaching at Quinnipiac.

SUJATA GADKAR-WILCOX: Yes.

ALEX WOODSON: How does your work in India inform your teaching and what's your end goal for 2017 when you're back and you're doing more research and when you're back in Connecticut after that?

SUJATA GADKAR-WILCOX: I'm starting to work on a larger project, a book. There is a lot of research that has already been done on the Indian Constitution. So really the question is what can you add to that. But I don't think there's a lot of work that is actually done looking at the discursive framework: What does the language and the structure of the document itself tell you?

For example, even though the document is the longest document in the world and there are all of these administrative provisions, it is also vague in certain areas, like when it comes to issues of religion. I think the comparison of the two—why is it vague in certain areas and why is it overly detailed in areas—where you are telling retired judges, for example, when and how they can serve the bench—that is really interesting to me. I think it says something about what areas they thought they had to control and then what areas in some ways may have been so politically entrenched that they were just beyond constitutional reform. I'd like to look more carefully at that. I'm trying to put that all together.

And also look at the viewpoints of the framers, and particularly the members of the Constituent Assembly. I think of them as insiders and outsiders. Although they were trained in Western law, most of them, and they were trained in the West and had gone to England or to the United States and had come back, they also referred to Indic texts. So their interpretation of legal rules is actually quite different. They are often talked about in this way, that they either have done—it was a mimesis, so it was just an actual representation of Western principles, or it was a complete break.

But I think it was something quite different than that. I think it was an actual reorientation based on a new interpretation that brings together the two. For example, Gandhi's interpretation of rights reinterprets rights to not think of them just as these entitlements but, again, to think of a right as only available if you actually fulfill your corresponding duty. If you don't fulfill that duty, then that changes the understanding of rights.

That is a very different understanding of rights, and that creates horizontal obligations, which we don't think about in the United States when we think about rights. We think rights are just things that we have, vertical entitlements, and we are preventing the government from infringing on them, not that we have to do something to be able to earn those rights.

I think there is a lot of that. There is the influence of the framers in changing the way constitutional jurisprudence was actually understood. That's what I'd like to look into between now and then.

It also informs my teaching because I teach classes on comparative constitutional law and a comparative class on India and the United States. It's actually really great to be able to speak to students about these issues. They always come up with something that you have overlooked because you're so firmly embedded in a particular area of understanding or a viewpoint. They see it from a completely different perspective.

Our program in legal studies is an interdisciplinary program, it's a law and humanities program, because it takes this approach of incorporating other aspects of law, not just the doctrinal approach, but to think about ethics, to think about politics, to think about history, how does this influence law and what does that mean in terms of the validity of legal rules. So that helps me a lot in my research.

The question is do I have time to get to all of this. That's the only question.

ALEX WOODSON: Just a quick question to finish up. Is your research in India mostly looking at primary documents, interviewing people? What kind of form does this actually take?

SUJATA GADKAR-WILCOX: Right now I'm looking at the primary documents. I have been to the National Archives. That's why I was in Delhi at the National Archives and I was affiliated with the O. P. Jindal Global Law School. We're doing collaborative work there.

But the documents that I am looking at are to actually look at some of the Constituent Assembly members' private papers, to see how they constructed and why they constructed rights in a particular way, so particularly someone like Ambedkar. There is another, Sardar Vallabhbhai Patel, who was the chair of the Fundamental Rights Committee. There's the Nehru Museum and Library as well. I look at those documents to see why in fact they constructed it, to see how they interpreted the rights. I think there is actually more of a nuance there than is in the literature now.

That's what I'd like to put together between now and then. I think there's a spirit there that, particularly in politics today, I'm really looking for. It's almost a pleasure in a sense to be in that moment and to see people struggling in a way that I think is very true to their personality. It's not just about power, it's not just about politics, but it's really about a struggle for how do I fulfill what is my real obligation.

Actually, I heard something yesterday from Obama and I wanted to bring this up, from the State of the Union Address. It was interesting because this is the first time I heard—I thought this was the best statement from President Obama's State of the Union Address—and it sounded to me like something Nehru and Patel, for example, would say about the constitution.

At the time the constitution was drafted, the reception of it abroad was fine, because of course it was written on the world stage. It wasn't clear, as with any new constitution and a new republic, whether it would be lasting and whether people would implement it. So there was really a push in the face of political uncertainty at that time to ask people to now fulfill their obligations and their responsibility to uphold the constitution.

It's interesting to me that, not for the first time, I heard President Obama say that in his speech. He said this, and it sounded exactly like what one of them would have said when they were promoting the constitution. He said, "Our collective future depends on your willingness to uphold your obligations as a citizen: to vote, to speak out, to stand up for others, especially the weak, especially the vulnerable, knowing that each of us is only here because somebody, somewhere, stood up for us." We need every American "to stay active in our public life" and not just during election time, so that our public life reflects the "decency that I see in the American people every single day."

It's interesting. I think what was clear from his speech is that what he sees is political uncertainty. In the face of political uncertainty, you have to turn to people and say, "Look, now, all of a sudden, I need you to fulfill your responsibility." So it's interesting that he said you as citizens have a duty, have a responsibility, because that's exactly what the framers said to individuals when they wrote the constitution. They said it's not enough to write the constitution; you have to help us fulfill this responsibility. Procedure isn't good enough. It has to be implemented in a way that actually creates some kind of social justice.

ALEX WOODSON: I agree. I think Americans forget that too often.

SUJATA GADKAR-WILCOX: Yes, what is our actual responsibility. So it was interesting that that came up yesterday.

ALEX WOODSON: That's great. That's a great way to end. Thank you so much.

This has been the Carnegie New Leaders podcast with Sujata Gadkar-Wilcox. My name is Alex Woodson. You can find this podcast at carnegiecouncil.org and iTunes.

Thanks for coming.

SUJATA GADKAR-WILCOX: Thank you so much, Alex.

ALEX WOODSON: Thanks for listening.

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