Remembering Granville Austin: A Renowned Scholar of the Indian Constitution

Academia

Remembering Granville Austin: A Renowned Scholar of the Indian Constitution

Madabhushi Sridhar | September 2014

The evolution of Constitutional Law did not end with landmark commencement of Constitution on January 26, 1950, but it started to evolve, which was rightly evaluated by Granville Austin, believes Prof. Madabhushi Sridhar

Granville Austin, a great historian and authority on Indian Constitution, who died recently in US, said in his famous book, Working a Democratic Constitution: The Indian Experience: “…the appointment and transfer of high court judges…Indeed the tenacity of both the broad and specific issues testified to their importance and to their irresolvable character: perfect independence of the judiciary was impossible. Were it claimed to exist, few would believe it, and others would be inclined to tamper it…”

It’s both damn easy and highly difficult to become a judge. One of my seniors, who occupied the high position in judiciary, once said, “…it’s conveyor-belt syndrome that defines the structure in this country. Somehow climb on to the conveyor belt and remain ‘steadfast’ there like a heap of coal, need not improve or do anything, you will come up to the top.”

The case in point is furore over collegium. Some critics called it a secret judicial club, and some questioned it because such anexpression was not used in Constitution. However, it was accepted as the SC and several others felt that consulting some more persons is better than depending solely on an individual opinion. Justice Markandey Katju’s expose did not pose any challenge to the consultation with collegium but questioned its baseless overruling by executive boss, PM and coalition bosses over him, and its acceptance by the CJI.

He dispelled the myth of so called independence of judiciary and its primacy in process of appointment and shown the world the vulnerability of top personalities in two key estates. It is surprising that collegium is being proposed to be dispensed with instead of introducing transparency in the process besides reforming it. Need of the hour is to disclose the entire correspondence including IB report about appointment and extension of additional judge and also about his elevation to permanent position. The executive and judiciary should take a policy decision to put all correspondence about each and every appointment of judge/constitutional office holders in public domain voluntarily under Section 4(1)(b) of Right to Information Act, 2005. The people of this country have a right to know what kind of persons are deciding their fate in the abode of judiciary.

DENIAL OF ACCESS TO ARCHIVES

It’s a surprise to know that a great constitutional historian like Granville Austin was initially denied access to certain vital documents. It was later provided by the initiative of none other than the first Prime Minister Jawaharlal Nehru and later the Law Minister Ram Jethmalani. Had he been denied the access to constituent assembly debates and files with law ministry, two great booksThe Indian Constitution: Cornerstone of a Nation and Working a Democratic Constitution: The Indian Experience would have not come out. Austin explained the merits and value of our Constitution as ‘corner stone of a nation’ in his first book, which came after 15 years of origin of the Constitution in 1950.

Granville Austin (1927- 2014) will be forever remembered for the vivid and effective documentation of Indian Constitutional history. We lost this scholar on July 6, 2014. He was exclusively dedicated to study and research of the history of rule book of India. His writings have significantly influenced judicial process and evolution of constitutional jurisprudence in India and beyond.

BEST BOOK ON INDIAN CONSTITUTION

It was because of the openness of Nehru that the first book of Austin (The Indian Constitution: Cornerstone of a Nation), gave us a vivid understanding of making of the Constitution. Nehru rightly gave him access to constituent assembly debates and even to the private papers of Maulana Azad, K.M. Munshi and others.

Austin’s research was systematic, meticulous and well-founded on facts of each and every step in the constitutional history from all possible angles. This researching author did not satisfy with the opinions expressed by the members in constituent assembly verbatim reported in the debates.

He went to the members of constituent assembly personally and interviewed them to know the background, circumstances, reasons and compulsions, if any, for the member to arrive at that opinion on vital aspects of Indian Constitution. In the process, he documented the process of thought that emerged into an article on the Constitution.

Earlier, debate was used to be documented but not the thought process. This book is much acclaimed as a scholarly analysis on the Indian Constitution. Austin described Indian Constitution as, “first and foremost a social document,” one that embodied the objectives of a ‘social revolution’.Upendra Bakshi, Professor of Law in Development at the University of Warwick, United Kingdom stated that Austin’s first book “provides themost comprehensive, insightful and balanced account of the work of the constituent assembly, which drafted the Indian Constitution in the brief span of time from December 1946 to December 1949 – a time of strife, turbulence and ferment not merely in India but in the entire world”.

The economist reviewed this book saying: “The author has done for the Indian Constitution what C A Beard and other scholars have done for the Constitution of the United States. The author’s reading has been vast and he has undertaken much research in unpublished material…There is something majestic in the scale of the work that is appropriate to the subject matter.”

SECOND SEMINAL WORK

For his second book in 2000, Austin needed access to certain law ministry papers, which were denied. It was the law minister Ram Jethmalani, who facilitated him access to files, which led to highly authoritative book on working of the Indian Constitution. All the students of Constitution should be thankful to both Nehru and Jethmalani, who in their capacity as holders of constitutional office, helped us to know its working through Austin, otherwise the information would have been buried in those files without any use.

This book gives a ‘critical insight into four decades of the Indian Constitution and charts the course of constitutional reform in India from the euphoric idealism of the post independence period, through thecrisis-ridden years of emergency and up to Rajiv Gandhi’s brief stay in power’ (quoted from back cover of the book) and how the social, political and day-to-day realities of Indian people have been reflected in and directed the course of governance.

‘Working a Democratic Constitution: The Indian Experience’ will stand as the best lesson in research methodology and writing techniques for contemporary history writers. Austin met every living judge, who contributed to thousand-page-judgment in Keshavananda Bharti case to understand the judicial process, which presented the origin of ‘basic structure’ doctrine of the Indian Constitution and its consolidation over a period of time.

The book takes readers to flashback of the dark days of Indian democracy- the Emergency in seventies, to the period that threatened secularism in 90s with acts like demolition of masjid, challenged the basic goal of equality with movements on reservations after Mandal recommendations and independence of judiciary.

The author met the senior advocates, who argued before the Apex Court for and against late Indira Gandhi on emergency amendments to find out reasons behind the contentions they took up including pressures, if any. The role of the press and judges during that period was critically analysed. After concluding research into the constitutional developments in India in 1986, he went on writing for more than a decade to produce book in 2000. That wasthe seriousness. Each sentence was authenticated, established or attributed to an authority.

PRAISED BY ONE AND ALL

Former Attorney General of India, and member of the Permanent Court of Arbitration at The Hague, Soli J Sorabjee wrote: “This classical work of Granville Austin is a must for every judge, lawyer, historian, researcher, and other persons interested in the constitutional history of India”.

Judith Brown, Professor of Commonwealth History, Oxford University says: “…this is no dry ‘constitutional history’. We are shown how examination of the issues and strains surrounding the Constitution and its role in the Indian polity are a window into the nation’s public life, particularly in relation to democratic stability, national integrity, and the stated goals of socioeconomic change…” Fali S Nariman analysed: “With intimate knowledge gained by living in India for long periods, and talking to people who have seen it happening, the author unfolds the triumphs and strains of working a truly democratic Constitution.”

Generally, books on Indian Constitution are heavily loaded with citations of court judgments. The author with difference, Austin takes the readers to the dynamics, power politics and deep rooted social causes pertaining to burning issues, some of which also might have travelled to the Apex Court. It is not just judicial interpretation of provisions of Constitution, but their living impact on the life of a society that needs to be studied.