Partition's Constitution: Law, Violence, Nation

Violence, manifested as war, civil strife, revolution, or colonial rule, often precedes the establishment of a new legal order.

In India, constitution-making was inaugurated by the violent Partition of the subcontinent, which displaced 12 million people, left 2 million dead, and 75,000 women abducted and raped.

In the shadow of this violence between 1946-1949, the Constituent Assembly met to write India's new constitution, even as refugees poured into makeshift camps within 'shouting distance' of its chambers in Delhi.

Notwithstanding the spatial and temporal proximity between violence and constitution-making, histories of Indian constitution-making rarely engage with Partition.

In the paradigmatic account, the Constitution of India (1950) is the teleological fruit of the nationalist struggle, adopted amidst overwhelming consensus.

Although a cursory glance at the debates makes it impossible to ignore the dissonance within, such uncritical celebration is seen in Granville Austin's The Indian Constitution: Cornerstone of a Nation, the definitive political history since its publication in 1966.

Austin lauds the Assembly for ensuring an 'atmosphere of unity, of idealism, and of national purpose' that enabled decision-making by accommodation and consensus.

However, critical accounts of the Indian founding emphasise the discordant, fragile nature of the compact, the role of forgotten personalities, and the agency of subaltern groups in shaping constitutionalism through rights litigation.

In a recent account, the radicalness of Indian founding is attributed to a three-pronged constitutional apparatus comprising codification, the centralised state, and individual centric representation that institute democratic politics.

If we consider, with Uday Mehta, the founding moment as constitutive of the 'absolutism of the political' - within which the social and sovereign questions are subsumed to the exclusion of other domains - it is impossible to abstract the constitution of political absolutism from the violent origins of the Indian republic.

As Etienne Balibar reminds us, '(t)he political would not be the empire of the nomos if the field of violence were not the empire of evil'.

This doctoral project argues that a critical constitutional history must ask how violence and sovereignty constitute each other through law.

It uses approaches in the study of political thought and constitutional theory to explore the relationship between originary violence, law, and sovereignty. The text of the Indian Constitution does not expressly engage with Partition, and so, appears to 'forget' the event.

My Master's thesis read the Constituent Assembly debates to argue that such amnesia is deceptive, for Partition implicitly shaped decisions on crucial provisions, like citizenship, minority political representation, and the federal structure. Yet, the Assembly seemed to distance itself from Partition, leaving the matter with the executive.

Its unwillingness is difficult to understand if one considers two points: first, the genesis of Partition as a constitutional problem of self-determination, and second, the Assembly's dual role as both constituent body and provisional legislature in this period, the implications of which have not been examined.

How, then, does one understand this constitutional silence?