India's Constitutional Historian

COMMENTARY

India’s Constitutional Historian Granville Austin (1927-2014) Vikram Raghavan

A tribute to the American scholar Granville Austin who wrote two landmark books on the making and then working of the Constitution of India.

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n the summer of 1987, Nancy Austin answered a knock on her front door. Her visitor politely introduced himself as R Sudarshan. He had come all the way from Delhi where he worked for the Ford Foundation. He had spent the past three years tracking down Nancy’s husband, Granville. He seemed thrilled that his search was finally over. Red, as Granville Austin liked to be called, was at home in Washington DC. In the couple’s living room, Sudarshan explained why he had come. He asked Austin if he would be willing to return to his alma mater, St Anthony’s College of the University of Oxford. Austin had obtained a doctorate there in the 1960s. In its neo-Gothic library, he had completed his first book, The Indian Constitution: Cornerstone of A Nation. He had spent the early 1960s in India researching it. Two decades later, Sudarshan wanted him to do a sequel. Funding would be available from the Ford Foundation. The Austins were genuinely surprised by Sudarshan’s offer. Yet, as the evening wore on, the proposal intrigued and excited them. Before he took their leave, Sudarshan and the Austins toasted their new project.1 Early Life

The author is grateful to Hilary Mac Austin, Mike Gee, R Sudarshan, Arun Thiruvengadam, and V Venkatesan for their assistance. All errors are his, and this article is written in his personal capacity. Vikram Raghavan ([email protected]) is a contributor to “Law and Other Things”, a blog about Indian law.

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Red Austin hailed from Norwich, a small town in Vermont in the United States. Its citizens lived austere lives reflecting their Puritanical roots. The local paper, the Hanover Gazette, published no “society pages” and a “PhD put no one on a pedestal” in the town (Austin 2008: 41). Austin’s only boyhood indulgences were milkshakes and skiing during Norwich’s long winters. He later attended nearby Dartmouth College where he studied American literature and did more skiing. In the late 1950s, Austin left the US for England. At Oxford, he chose to focus on the making of India’s Constitution. It was a subject in which few scholars displayed much interest at the time. SEPTEMBER 13, 2014

Who or what prompted Austin’s choice is a bit unclear. Decades later, he offered two modest reasons for it. First, the Constitution was a “convenient vehicle” to understand India. Second, the subject seemed “academically manageable” to him (Austin 1987). Research in Delhi Austin arrived in Delhi in August 1960. His first weeks were enormously frustrating. No one seemed particularly interested in helping him. What is more, the zealous guardians of government archives actively resisted his requests to consult relevant files (Raghavan 2014). Undaunted, Austin turned to other American and British scholars. They worked in disparate fields: political science, sociology and anthropology. Their academic training and agendas varied. But they shared a common purpose: understanding Indian democracy and development. They gave Austin many leads: whom to meet and where one might find materials. Austin’s Oxford connections also helped him. One by one, he bagged interviews with those involved with the Constituent Assembly. He unfailingly charmed his subjects with his pleasing manners and infective personality. Always polite, Austin quickly assessed each interviewee’s worth. K M Munshi had been the assembly’s “Mr Activity.” Austin put him down as a very good man to know. Indeed, Munshi was extraordinarily helpful in sharing his personal collection of the assembly papers. On the other hand, Austin found K Santhanam rather pleasant but generally “factless”. Through his meetings, Austin gained considerable insights into the Constituent Assembly’s dilemmas and choices. Like Munshi, some of Austin’s sources helped him obtain valuable documents and correspondence. Conversely, they also filled silences and gaps in the archival record. The interviews were critical to Cornerstone’s dramatic recreation of what happened in and outside the assembly. Making of the Constitution In Cornerstone, Austin describes how the Constituent Assembly debated and adopted the Constitution. Erecting a vol xlIX no 37

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republic was a top priority for newly independent India. It was a lengthy and emotional exercise, and it took place under barely auspicious circumstances. Partition riots had devastated many cities. Refugees packed overcrowded camps. There was insurrection and turmoil across the land. Yet, the assembly pressed on with its labours. Austin believed that a four-man oligarchy skilfully managed the assembly’s proceedings. It comprised Nehru, Patel, Prasad and Azad, who were the freedom movement’s heroes. Curiously, Austin did not include Ambedkar among this group. At the same time, Austin praised the dalit leader for formulating and defending the draft constitution. In so doing, Austin was among the first historians to acknowledge Ambedkar’s constitutional contributions. In ringing tones, Cornerstone declares that the Constitution is a transformational charter. The text embodies the founders’ dreams for a socio-economic revolution. The road to this revolution lay in the Directive Principles of State Policy. Those principles exhort the government to adopt sweeping economic policies. The state is called upon to ensure universal healthcare, primary education, minimum wages, and other basic social and economic entitlements. Austin was deeply stirred by these “transcendent” social commitments in a fundamentally political document. Austin marvelled at the Constituent Assembly’s landmark decision to grant every Indian adult the vote. Ignoring many sceptics, the oligarchs had taken a bold gamble. They had few precedents to guide them; after all, few countries had fully enfranchised all their citizens in the late 1940s. Yet, as Austin later put it, India’s founders took a remarkable “leap in the dark”. With hindsight, it was a winning bet. Universal suffrage built popular support and won lasting legitimacy for the Constitution. Cornerstone strongly endorsed India’s adoption of the British parliamentary model. Its author believed that a presidential system was profoundly illsuited to India. He conceded that some Gandhians in the Constituent Assembly had wanted a village-based republic. Economic & Political Weekly

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Yet, their proposals seemed so unviable that they could not be taken seriously. Moreover, the Westminster arrangement had worked reasonably well before Independence. The founders, Austin concluded, had chosen well and wisely to retain that arrangement. Response to Cornerstone At a visceral level, Cornerstone is a feelgood book. It shuns academic and technical jargon. It is cast in short and simple phrasing. Virtually every page is anchored by hard-to-ignore footnotes. The book’s appendices are crammed with considerable biographical and bibliographical details that are tremendously useful. Cornerstone was generally well received by its early readers. Its most vigorous critic was Upendra Baxi who carefully dissected the book (1967). In a lengthy review, Baxi hailed Austin for writing an authoritative history on the Constitution. Yet, he did not share Austin’s sunny optimism for India’s future based on his assessment of ground realities. The book was especially popular among constitutional lawyers and judges. It saved them from wading through stem-winders in the Constituent Assembly debates. The Supreme Court quickly took notice of the new title. In its controversial Golak Nath decision, the Court enjoined Parliament from amending any fundamental rights protected by the Constitution (I C Golak Nath vs State of Punjab, AIR 1967 SC 1643). Cornerstone was cited in one of the main judgments. Austin was introduced as a “learned author”. His volume had been in print for barely a year. Parliament tried to overrule Golak Nath by amplifying its power to amend the Constitution. This amendment was subsequently challenged in the historic

Kesavananda Bharati Case (Kesavananda Bharati vs State of Kerala, AIR 1973 SC 1461). Petitioners cited Cornerstone in their written submissions, and the book’s passages were almost certainly recited during the hearings. In its verdict, the Court narrowly ruled that Parliament could amend the Constitution without disturbing its basic structure. Twelve of the 13 judges on the Kesavananda bench cited Cornerstone. Both the majority and the minority found Austin’s analysis persuasive. After Kesavananda, Cornerstone references sprouted like green gram in many different cases.2 Austin’s work was particularly important in Minerva Mills (Minerva Mills vs Union of India, AIR 1980 SC 1789). There, the Court was asked to invalidate certain provisions of the 42nd Amendment. Among other things, these provisions severely restricted the judiciary’s ability to declare certain laws unconstitutional. The Court struck them down for violating the Constitution’s basic features. In its reasoning, the majority relied on Cornerstone’s theory that the Constitution establishes an equilibrium between citizens’ rights and the state’s socio-economic objectives. The Court found that the 42nd Amendment gravely upset this equilibrium. Cornerstone’s appeal was not confined only to the legal profession. It has been frequently cited in parliamentary debates and presidential speeches. Cornerstone has become a foundational text in Indian history and political science (Elongavan 2014). I first discovered the text 20 years ago on a friend’s bookshelf. It was a gift from his parents who were neither lawyers nor social scientists. The book is now frequently recommended to those preparing for the civil services exams (Elangovan 2014).

EPW Index An author-title index for EPW has been prepared for the years from 1968 to 2012. The PDFs of the Index have been uploaded, year-wise, on the EPW website. Visitors can download the Index for all the years from the site. (The Index for a few years is yet to be prepared and will be uploaded when ready.) EPW would like to acknowledge the help of the staff of the library of the Indira Gandhi Institute of Development Research, Mumbai, in preparing the index under a project supported by the RD Tata Trust. vol xlIX no 37

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COMMENTARY

Mystifyingly, for several years, Austin neither acknowledged Cornerstone’s fame nor responded to his critics. After he finished his Oxford DPhil, he decided to work for the US government. He joined the US State Department where he prepared intelligence assessments for policy makers on west Asia.3 He later became a senior staffer to a prominent US Senator. During the late 1970s, Austin served as a communications director for a Washington-based trade association. Research on Second Book When Sudarshan came calling, Austin was loosely affiliated with an interreligious organisation devoted to west Asian peace. He had just submitted a book proposal on America’s relations with Israel. But it did not take much to coax him back to India. Austin returned to Delhi in September 1987. He was surprised by how warmly he was welcomed. At the Kerala High Court, he received such embarrassing praise that it seemed like he had personally drafted the Constitution. Cornerstone’s glow had finally caught up with him. As he had done in the 1960s, Austin relied as much on personal interviews as archival research. He made the early rounds of Delhi’s think tanks and the Ministry of Law. Politicians and political commentators readily obliged when he sought appointments. Judges and lawyers chatted with him like they were old friends. Austin made the India International Centre his home base. He was a regular at the bar and restaurant. He rarely drank or ate alone. There was always someone important or interesting at his table. At the Nehru Memorial Library, he took frequent tea breaks to befriend other scholars. Austin’s network widened as his social calendar grew. No invitation seemed too casual to decline. L M Singhvi took him to a farmhouse full of lawyers. He left with many business cards. Attending a lavish birthday for Subhash Kashyap’s grandson, Austin made more useful connections. At lunches, dinners and cocktail parties, he was introduced to senior bureaucrats and leading journalists. They constituted Delhi’s elite underground railroad, which Austin managed 42

to successfully penetrate. He never missed an opportunity to make new contacts in the most unlikely places. At a barbershop, he met the attorney general who was having a pedicure. Austin learnt much from his many conversations. He realised that he was sometimes fed just gossip or idle speculation. Yet, no archive could reveal all that he discovered about the inner workings of the government’s three branches. In addition, Austin’s contacts helped satisfy his insatiable appetite for private papers and unpublished material. Every night, in his ringed and ruled notebooks, he faithfully transcribed all he saw and heard that day. Whom he met and what they told him. No scrap seemed too trivial to chronicle. His “miscellaneous” entries are filled with interesting tidbits. They record every cuckoo, mynah, lapwing, and wagtail Austin saw in Lodhi Gardens. He drank rum and nimbu pani after jogging in Lodhi Gardens. He arrived at the opinionated jurist H M Seervai’s office somewhat prepared for a monologue. What Austin did not foresee was that Seervai would speak for four full hours. Three years into his project, Austin grew overwhelmed by its scale. He had accumulated many thick folders of notes, clippings and photocopies. Assembling a manuscript from this mass seemed a daunting task. His Ford Foundation grant soon ran out, and Austin was forced to take a temporary break. Yet, he refused to abandon the undertaking entirely. With his Nancy’s assistance, he came back to Delhi with fresh funding. There were more people to meet and more papers to find. Twelve years after Sudarshan came calling, Austin finally delivered a sprawling manuscript to his editor. Response to Working In Working a Democratic Constitution, Austin describes successive stages in India’s modern evolution. The book begins where Cornerstone ends: Republic Day 1950. It travels through Nehru’s three terms as prime minister. It covers his succession before turning to Indira Gandhi’s tenure. It painstakingly discusses the road to the Emergency and events SEPTEMBER 13, 2014

thereafter. After reviewing the shortlived Janata regime, the book tracks Indira Gandhi’s comeback and her tragic assassination. Austin’s chronological narrative largely ends in 1985, although he ventures beyond to cover events like the Babri Masjid’s destruction. He carefully reconstructs important political and constitutional developments in each phase. According to Austin, India’s constitutional foundations remained firm and secure. He conceded that the country had witnessed many political and constitutional crises. But many of them arose from political machinations in working the Constitution, rather than its basic structural design. To Austin, the Constituent Assembly’s cornerstone was still sturdy and enduring despite several decades “of hourly use”. He fashioned a simple rhetorical device to explain his findings. India’s founders, he argued, had spun a “seamless web” comprising: social revolution, national unity and democratic stability. This web motivates, guides and constrains India’s leaders in interpreting and applying the Constitution. Democratic Constitution pays close attention to the Constitution’s checks and balances. The separation of powers is not a major element in Austin’s seamless web. But it is an underlying theme throughout his narrative. When Austin began his research, he searched in vain for a good constitutional law casebook. As if to fill that void, Democratic Constitution devotes many pages to India’s great constitutional cases. It discusses their salient facts and legal bases; their dramatis personae: litigants, lawyers and judges; what happened behind-thescenes at lawyers’ offices and judges’ chambers; the Court’s orders and judgments and how they were received. The book is as much an institutional biography on the judiciary as it is about the Constitution. Like Cornerstone, Democratic Constitution received critical acclaim. Many reviewers praised Austin for completing this supremely ambitious project. Some faulted him for relying too much on anecdotes (Jayal 2000). Others criticised him for not covering federalism issues adequately (Noorani 2000). Again, vol xlIX no 37

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Upendra Baxi offered a stinging critique. He argued that Cornerstone had been so enormously influential that Austin had become a saint to India’s legal profe­ssion. Yet, he cautioned the “faithful” aga­inst blindly accepting Democratic Con­stitution, which he portrayed as Austin’s seductively written “gospel” (Baxi 2001). After Democratic Constitution, Austin became a much sought-after commentator. He responded graciously to every serious solicitation. After many years of living in and researching India, he had developed a deep understanding of constitutional and political matters. Yet, he strenuously insisted that he remained an outsider. It was this firm belief that ­tempered his cautious, yet candid, views and opinions. Plans for Third Book After Democratic Constitution, Austin planned a third book. It would focus on the Emergency. It would explain what really happened with internal government documents that none had previously accessed. Austin wrote to anyone who might be able to help: L K Advani,

Natwar Singh and I K Gujral. The file reached a middle-order babu who laconically insisted that the documents were classified. After several attempts to appeal this ruling, Austin simply gave up. He turned instead to writing his memoirs. In Retrieving Times, Austin recounts his early Vermont years. It contains virtually no mention of India. It ends with Austin’s arrival at Dartmouth. In fact, Austin writes very little about himself. He largely focuses on childhood friends and neighbours in Norwich. His autobiographical style reflected his deep reluctance to engage in any self-promotion. I last met Austin two summers ago. We sat in his garden and drank lemonade. He had slowed down considerably. Yet, he seemed as ebullient and optimistic like he was when we first met. I had come with a list of questions about his time in India. But he did not seem in a mood to reminisce. “Come back another day,” he said. “We will talk about India, Oxford, and everything else.” As I took his leave, it struck me that another meeting seemed quite unlikely. Perhaps, the evermodest Austin just wanted it that way.

Notes 1 E-mail correspondence with R Sudarshan in ­August 2014. 2 See Raghavan (2010) which lists several cases that cite Cornerstone. 3 Austin’s interest in India had not completely waned. In 1972, he reviewed two books on India for the journal, Pacific Affairs.

References Austin, Granville (1966): The Indian Constitution: Cornerstone of a Nation, Clarendon Press. – (1987): “Talking Points for Kerala Bar Association”, 28 October, Granville Austin India Note Books 151-52 (Vol No 2).  – (1999): Working a Democratic Constitution, ­Oxford University Press. – (2008): Retrieving Times, White River Press. Baxi, Upendra (1967): “The Little Done, the Vast Undone: Reflections on Reading Granville Austin’s The Indian Constitution”, Journal of the Indian Law Institute, 323. – (2001): “Saint Granville’s Gospel: Reflections”, Economic & Political Weekly, 17 March. Elangovan, Arvind (2014): “Interpreter of the Constitution”, Frontline, 8 August. Jayal, Niraja Gopal (2000): “A Seamless Web”, Biblio, May-June. Noorani, A G (2000): “The Constitution and the Course of Politics”, Frontline, 1-14 April. Raghavan, Vikram (2010): “The Biographer of the Indian Constitution”, Seminar, November. – (2014): “How Granville Austin beat Delhi Babudom to Write his Book on the Indian Constitution”, Scroll.in, 12 July.

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