Indian Constitution:

Relevance of Granville Austin’s account on Indian Constitution:

Granville Austin is a much cited and relied upon source in Indian constitutional jurisprudence. Austin’s works are valuable because they provided insights into appreciating the Constitution—its aims, objectives and the processes of its making. This article highlights the significance of Granville Austin’s scholarly analysis on framing and working of the Indian Constitution to educate lawyers, scholars and Judges. 

[Recounting the Idea of India: The Legacy of Granville Austin by Menaka Guruswamy]

[(2014) 7 SCC (J-15)]SCC JOURNAL SECTION PAGE 1

RECOUNTING THE IDEA OF INDIA: THE LEGACY OF GRANVILLE AUSTIN

by

Menaka Guruswamy

Introduction

Granville Austin’s account of India’s successful Constitution-making process is an invaluable resource, for the many generations born long after the Constitution was made. Austin’s work serves to educate lawyers, scholars and Judges alike on our Constitution and its crafting. He recounts the debates, and assesses the processes that essentially constituted the idea of India as a cosmopolitan constitutional democracy. Accounts such as Austin’s are immensely significant — for by making the Constitution-making process accessible to diverse audiences, they contribute to establishing a culture of constitutionalism. What are the ingredients of this culture of constitutionalism? A belief in the compact that is the text, a commitment to change within the terms of this document, and a moral, social and legal acceptance of its vision are some of the ingredients of constitutionalism. One cannot take such a culture of constitutionalism for granted. India’s experience of uninterrupted democratic constitutionalism is unique in the South-Asian region.

Granville Austin’s great contributions to Indian constitutionalism are his two books. The first, The Indian Constitution: Cornerstone of a Nation documents and analyses India’s Constitution-making process. The second book, Working a Democratic Constitution examines India’s experiences with democratic constitutionalism, from the adoption of the Constitution in 1950 to the early 1990s. Austin’s third book is called Retrieving Times, and was written a decade ago. It is about his life in Vermont, the town of Norwich which he lived in and its people. How did the young boy from Norwich, Vermont end up documenting India’s founding?

Granville Austin or “Red” as he was known to his friends went to college at Dartmouth and subsequently took his doctorate in Modern Indian History from Oxford University. His doctoral research provided a perfect foundation for appreciating India. It may well have given him the methodological tools to undertake a complex task like documenting the making of the Constitution. Later in life, Austin worked as a journalist/photographer, served with the US Information Service and worked on the staff of a United States Senator. He was also the founder member of the Committee for Arab-Israeli Peace. But, India will always remember Austin as the biographer of her lengthy, but profound Constitution.

Austin’s analysis of the Constitution-making process is invaluable not only as a mode of recollecting it, but, also for the insights it provides. For instance, one of his assessments of the causes for the success of the Constitution-making process — was the choice of the Assembly to arrive at decisions by “consensus”.2 This means that there was no voting, or no demarcations of majority and minorities on any issue. The Assembly used debate and discussion to arrive at conclusions that were acceptable to all.

A.  A Historian in Constitution Jurisprudence, Austin himself was not a lawyer, but a historian by training. Yet, he is prolifically cited and discussed in Indian constitutional jurisprudence. Academics, Judges and students refer to Austin’s telling of the making of the Constitution, its progress and even unmaking. There is some irony that Red, a historian by training, is so relied upon by the courts. Yet, the courts have rarely looked to the social sciences for illuminating their understanding on the many issues that would clearly benefit from a multi-disciplinary approach.

Even in our law schools there is little teaching of the social sciences — history, politics, literature and sociology. However, Austin’s work and the legitimacy it enjoys, reflects the need for a multi-disciplinary education and analysis of Indian constitutionalism. Austin the historian knew how to document our making. Austin the researcher knew how to get the most out of interviews and documents. Yet, we do not have courses on legal research or legal writing or interviewing subjects or clients as part of our law curriculum. Clearly, our legal education does not intend to produce any more Austins. Austin’s legacy must include a conversation about the reform of the curriculum of legal education and its incorporation of the social sciences.

B. Reliance on Austin by the Supreme Court

(a) Austin in Kesavananda: Two wheels of a chariot?

Granville Austin is a much cited and relied upon source in Indian constitutional jurisprudence. Austin’s works are valuable because they provided insights into appreciating the Constitution — its aims, objectives and the processes of its making. Let us examine a few of the landmark cases that cite Austin’s works.

Kesavananda Bharati v. State of Kerala3, the constitutional classic, dealt with the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments to the Constitution, and specifically concerned the constitutional validity of legislation pertaining to land reform in Kerala. Undoubtedly, Kesavananda has become the heart of Indian constitutionalism, far removed from simply

land reform in one part of India. The case was heard and decided by thirteen Judges. Justices Shelat and Grover were amongst the many Judges in this case who refer to Austin. They discuss Austin’s analysis of directive principles from his book "The Indian Constitution: Cornerstone of a Nation." They rely on Austin amongst others to further strengthen their reasoning on why directive principles belong to an elevated status that warranted enforceability. 

They opine:

According to Granville Austin, directive principles of State policy set forth the humanitarian socialist precepts that were the aims of the Indian social revolution. Granville Austin, while summing up the interrelationship of fundamental rights and the directive principles, says that it is quite evident that the fundamental rights and the directive principles were designed by the members of the Assembly to be the chief instruments in bringing about the great reforms of the social revolution. He gives the answer to the question whether they have helped to bring the Indian society closer to the Constitution’s goal of social, economic and political justice for all in the affirmative.4

The Judges appear to refer to Austin’s own conclusion that fundamental rights and directive principles have brought Indian society closer to a more complete justice for those sections that have been traditionally disempowered. Interestingly, Austin discusses directive principles in a chapter that is titled Fundamental Rights II.5

In the same case, Justice Jaganmohan Reddy relies on Austin to describe the character of the Constitution, and also to provide a foundation for the special status of both fundamental rights and directive principles. The Judges adopt Austin’s characterisation of the Constitution as setting forth the goals of the social revolution that Independence was meant to usher in: As Granville Austin so aptly puts it in his book The Indian Constitution at p. 50, “The Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement. Yet despite the permeations of the entire Constitution by the aim of national renascence, the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and in the directive principles of State policy. 

These are the conscience of the Constitution. The fundamental rights and directive principles had their roots deep in the struggle for Independence. And they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India. The rights and principles thus connect India’s future, present, and past, adding greatly to the significance of their inclusion in the Constitution, and giving strength to the pursuit of the social revolution in India.

From his own study of the Constituent Assembly Debates, Austin comes to the conclusion that the fundamental rights and the directive principles were meant to together comprise the conscience of the Constitution. It is a bold conclusion — for it reads technically two unequal textual chapters as supplementing each other. I wonder if a historian trained in the law would have arrived at a similar conclusion. Legal training is notoriously unimaginative and rarely imparts the need to look beyond the letters of the text. Would a lawyer with no training in Indian History have appreciated the need for arriving at such a conclusion? Did nation-building, amid the horrific inequalities that have been ever present throughout India’s history, necessitate such a conclusion?

Nonetheless, it is testament to the legitimacy that Austin enjoyed as a scholarly source, that the Supreme Court felt comfortable using his words to set the context for their own reasoning. This characterisation of his was cited by the Supreme Court in numerous other cases. Austin’s work played the critical role that scholarship brings to litigation — it enables insights, opinion formation and provides a well-researched account of the aims of the Constitution drafters. Like all significant works that are relied upon repeatedly by the Judges of apex courts, it enables consistency in interpretation.

The Varied Uses of Scholarship: Austin in Ashoka Kumar Thakur

Ashoka Kumar Thakur v. Union of India,7 concerned the constitutionality of certain kinds of reservations on the basis of the “Other Backward Caste” category. It specifically dealt with the 93rd Amendment and the Central Educational Institutions (Reservation in Admission) Act, 2006. Here, Justice Dalveer Bhandari looks to Austin repeatedly to make the point that the framers of the Constitution intended to address caste discrimination that was prevalent in India. There are three different uses of Austin’s work by the Judge

Quote I.

Interestingly, the Austinian passage below is one in which the historian is quoting K. Santhanam, a member of the Constituent Assembly, writing in a popular newspaper. It illustrates the use of Austin by the courts to access a wide range of sources:

Seeking to remove the blight created by caste, the original framers were social reformers. “The social revolution meant ‘to get (India) out of the medievalism based on birth, religion, custom, and community and reconstruct her social structure on modern foundations of law, individual merit, and secular education’.” 

Justice Bhandari then moves onto Austin quoting President Rajendra Prasad in the Constituent Assembly. Here is a more straightforward use of Austin quoting from the Constituent Assembly Debates:

India’s first President Rajendra Prasad assured the nation that the assembly and the Government’s aim was to “end poverty and squalor ... to abolish distinction and exploitation and to ensure decent conditions of living”. 

Finally, Justice Bhandari cites Austin’s conclusions on separate electorates. Here is a use of Austin’s own conclusions to pepper a judgment.

With respect to electorates, Granville Austin explains: Desiring above all to promote national unity, members of the Constitutional Assembly rejected these devices by substituting direct elections for indirect in Lower Houses, by rejecting separate electorates in favour of joint electorates and by abolishing ... except for Scheduled Castes and Tribes — reserved seats. The Assembly believed in Jenning’s words, that “to recognise communal claims ... is to strengthen communalism”. 

Austin’s work was put to a different use in State of Rajasthan v. Union of India.11 This case involved the Janata Government writing to the Governors of nine Congress Governments to dissolve the Assemblies and seek a fresh mandate from the people. The States in question — Bihar, Uttar Pradesh, Himachal Pradesh, Haryana, Madhya Pradesh, Orissa, Punjab, Rajasthan and West Bengal filed suits in the Supreme Court praying that such communication (a letter) from the Centre was not binding on them and unconstitutional. Hence, the primary issue before the court was the nature of federalism in the Indian Union.

Justice Beg while discussing the peculiar nature of federalism followed by the Indian Constitution, relies on Austin’s discussion of the works of K.C. Wheare and A.H. Birch. Here, the Judge uses Austin to bring to a judgment, a discussion between theorists on the varying conceptions of federalism. It provides an example of how scholarship can aid the court by succinctly capturing various theoretical conceptions:

Mr Granville Austin, in The Indian Constitution: Cornerstone of a Nation (see p. 186) in the course of an account of our Constitution-making, points out that the members of our Constituent Assembly believed that India had unique problems which had not “confronted other federations in history”. Terms such as “quasi-federal” and “statutory decentralisation” were not found by the learned author to be illuminating. The concepts and aspirations of our Constitution-makers were different from those in America or Australia. 

The notion of “Federalism”, where “The general and regional Governments of a country shall be independent each of the other within its sphere.” Mr Austin thought that our system, if it could be called federal, could be described as “cooperative federalism”. This term was used by another author, Mr A.H. Birch (see, Federalism, Finance and Social Legislation in Canada, Australia and the United States).

Austin is cited and relied upon in a host of other great Indian constitutional law classics like Indira Nehru Gandhi v. Raj Narain, Minerva Mills Ltd. v. Union of India and Maneka Gandhi v. Union of India. In many cases, Austin enables overburdened Supreme Court Judges to access theoretical discussions and succinctly translate those into concepts that illuminate constitutional law issues before the Court. We may have concerns about an Apex Court relying on a scholar discussing another scholar’s work — but, such is the burden of individual Judges today in the court system — that rarely is the intense study of scholarship possible.

The use of Austin’s work underscores the desperate need for good quality Indian scholarship as it pertains to issues that confront the courts. Good scholarship provides not just information but also objectivity about the issue on hand. Both of which are especially essential for a Court such as ours that engages the widest possible array of causes of actions. Scholarship does what counsel in the adversarial frame often cannot provide — an objective and in-depth assessment of the various facets of the problem on hand. A real tribute to Granville Austin will include a commitment by law schools, Judges and lawyers to nurturing scholarship in the classroom and at the Bar. There must also be more conversations between Judges, the Bar and academia, on the issues that confront Indian constitutionalism. Austin’s scholarship has established the necessity and value of such interaction.

(Menaka Guruswamy, Advocate, Supreme Court of India was educated at the National Law School of India, Harvard Law School and Oxford University. Her doctoral dissertation from Oxford was on Constitution-Making in India, Pakistan and Nepal. The author is immensely grateful to Senior Advocate Ashok Desai for the conversations he had with her on Granville Austin. She would also like to thank Nakul Nayak for his research assistance on this article. She can be contacted at menaka.guruswamy@gmail.com.)