When Granville Austin came to India in the early 1960s to write a history of its constitutional founding, research was hard. Jawaharlal Nehru helped him gain access to materials, Rajendra Prasad and K.M. Munshi shared their private papers, the law ministry worked to uncover documents and in 1966, Austin delivered on his promise. What he produced — The Indian Constitution: Cornerstone of a Nation — was and remains the most meticulous and carefully constructed account of the constitution-making process between 1946 and 1949. Three decades later, Austin, an “independent scholar” in Washington, returned with another book, Working a Democratic Constitution: A History of the Indian Experience. The second began where the first had ended, offering a remarkable narrative history of Indian constitutional development. Both works made the man, who was awarded a Padma Shri in 2011 and died earlier this week at the age of 87, the pre-eminent chronicler of India’s constitutional journey.
When Austin began his first book, little had been written about the post-1947 Indian constitution-making process. Constitutional histories typically stopped with the coming of independence and, unsurprisingly, Cornerstone became an instant classic. From reviews in the world’s leading magazines and law journals to citations by the Supreme Court, the book became the definitive reference point on India’s constitutional founding for scholars and lawyers alike. Steeped in archival material, it covered key decisions made by the Constituent Assembly, from the relationship between the Centre and states, to emergency powers, to the nation’s official language. Through unpacking the various negotiating positions and their resolution, Austin demonstrated that the debates were an intellectual resource that had received far less attention than they deserved. This is still a controversial argument, for many continue to suggest that the Constitution was a replica of the Government of India Act, 1935. While Austin challenged this view, his book couldn’t quite immortalise the Indian founding as a constitutional moment. In some ways, Cornerstone was a victim of its own detail, missing conceptual linkages with the broader currents of Indian intellectual history and the wider traditions of global constitutionalism.
In Austin’s second project, he moved from history to practice. Working a Democratic Constitution placed the Constitution at the heart of India’s democratic story. There have only been a select few books, such as Ramachandra Guha’s India After Gandhi, that have managed to successfully find a way to tell the history of independent India. Austin must belong in that small category of victors. The focal point he offered was not political actors or economic transitions but instead constitutional development, and his book remains the only one to have embraced this methodological vision. Interviews, newspaper articles, private papers, parliamentary debates and judicial cases were deployed to cover themes such as land redistribution and the right to property, the clash for supremacy between the judiciary and Parliament, the Emergency and its associated constitutional carnage, federalism and the politics of presidential rule, and so forth. The story Austin wove was rich in characters and controversies. Judges and their judgments, politicians and their machinations, and the Constitution and its amendments, all made for a fascinating account of the unravelling of India. This contribution was a marked change from hitherto existing, entirely legal accounts of constitutional progress. Such accounts had technical brilliance but were aimed largely at practitioners, and offered few resources through which one could comprehend what the Constitution meant within the larger framework of democratic politics. Yet, in his aspiration to integrate law and politics, Austin moved too far from one extreme to the other. Working a Democratic Constitution was strikingly inattentive to the inner life of law, forgetting that legal controversies were not always struggles over power or manifestations of political tension. They were often consequences of genuine disagreement over the nature and purpose of law, and legal doctrine had its own normative integrity.
Austin did not offer the most penetrating analyses of constitutional law or the most incisive accounts of judicial politics — honours likely to belong to figures such as H.M. Seervai, P.K. Tripathi, Upendra Baxi and Rajeev Dhavan. But he did present a story of Indian constitutionalism, of its birth and its life, in the way that no other scholar managed to. Some of the work he left undone in his own projects — on the conceptual underpinnings and theoretical significance of India’s constitutional founding and on the complex, elusive way in which law and politics interact and yet remain independent domains — is now being done. Indian scholars are reimagining the field of constitutional law with noticeable inventiveness, and law and the social sciences are being integrated with fresh energy. But much of this exciting new work has only been made possible by the foundation which Austin laid. His painstaking documentation has meant that so much of the hard work has already been done. With the basic tale of Indian constitutionalism in place, we have the luxury of refining its chapters.
Khosla, a lawyer and political theorist at Harvard University, is author of ‘The Indian Constitution’ email@example.com
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