"Constitutionalism before the Constitution: Nationalism, Civil Liberties and the Rule of Law, 1946 - 50"

Abstract: The story of constitutional protections for civil liberties in India can sometimes be told as a series of failures: of the Constituent Assembly to provide adequate safeguards for civil liberties in the original constitutional text; of post-Independence governments to live up to their promises to overturn a colonial order which had no room for such protections; and of the Supreme Court to stand up for civil liberties once the constitution came into force. In this talk I suggest that we take seriously the existence of an Indian constitutional tradition which predates the making of the 1950 Constitution. My starting point is a series of High Court judgements in 1946-50 involving challenges to "Public Security" or "Public Safety" Acts enacted by Provincial Congress governments across the country. The (pre-constitutional) jurisprudence which these (colonial) High Courts used to protect civil liberties in this period drew upon a familiar common law tradition which appealed to "rule of law" principles to discipline executive ac tion in the absence of a bill of rights. I claim that understanding how colonial law could be mobilised in this way in support of civil liberties tells us something deep about the nature of law and its persistence across the colonial/post-colonial frontier. It also allows us to raise institutional and legal questions which might be obscured by a focus on the 1950 Constitution. Finally, the cases provide a glimpse of a liberal tradition which floated free of the mainstream of Indian nationalism. This was a tradition which claimed to care more about individual liberty than about freedom from British rule, and which was thus easy to marginalise from the perspective of the anti-colonial movement. In the post-Independence period, however, this tradition had the ideological resources to claim civil liberties protections for figures whose "nationalist" credentials were at best dubious, such as members of the Communist party, the RSS, and the Muslim National Guard. A robust contemporary liberalism would do well to hark back to it.