Understanding the country’s most ambitious project, the Indian Constitution

  • Prashant Jha, Hindustan Times
  • Updated: May 28, 2016 12:27 IST
File photo dated June 14, 1948. Seen here is C Rajagopalachari (R), the then Governor General of India with BR Ambedkar, the Law Minister. (Photo Division/PIB)

India’s chaotic political battles often hide a more fundamental reality — of systemic stability.

The achievement becomes more obvious when you look around the region.

Pakistan’s constitutional journey has often been interrupted by military rule. The country witnessed the first smooth transfer of power through democratic elections only in 2013. Nepal has had six constitutions in as many decades. Its 2015 constitution has triggered deep political unrest. The 1972 and 1978 constitutions in Sri Lanka entrenched majoritarianism, unleashed a bloody ethnic conflict and the country has only now initiated a constitutional review process. Political forces in Bangladesh are unable to agree on the basic rules of the electoral game. Myanmar’s constitutional order has either been undemocratic, or exclusionary, and often both.

An enduring constitutional order distinguishes India, not only from its neighbours but also many other post-colonial developing countries.

Read:Document for all ages: Why Constitution is our greatest achievement

The Indian Constitution is among the most ambitious experiments in global democratic history. To explain the extraordinary achievement, and ensure it finds its due place in international scholarship on constitutionalism, we finally have an extraordinary book — comprehensive in its scope, rigorous in its analysis, original in its research, scholarly yet accessible in its writing, and relatively affordable in its pricing.

The centrality of the constitution

As the editors of the Oxford Handbook of the Indian Constitution note, the constitution was the framework through which democracy came into being. It was the ‘charter’ laying out a path to ‘modernity and radical social reform’. It was meant to help manage and accommodate ‘the most complex ethnic, religious, and linguistic diversity of any modern nation-state’. “It has been the normative and legal framework through which the world’s largest democracy contests its own future.”

Over 55 chapters, the Handbook examines the historical roots of the constitution, and its foundational moment. It explores the interplay of law and democracy. It takes a detailed look at the separation of powers and architecture of the legislature, executive and judiciary. Federalism is central to India’s political construct - and the book has seven chapters delving into its mechanics. It deals with both the structure of rights, and the substance of each right. It explores the interplay between administration and law, a critical issue shaping governance.

A general view of the Constituent Assembly. The session is being held in the Constitution Hall which was formerly the Library of the Council House. File photo dated December 10, 1946. (Photo Division/PIB)

The timing of the volume seems just right, for the constitution has become even more important in the day-to-day practice of politics. As Harvard University scholar and one of the editors of the book, Madhav Khosla, puts it, “So much of Indian life is now constitutionalised. Every conflict, from Uttarakhand to reservations to religious freedom to Aadhar, can be framed as a constitutional controversy.”

Pratap Bhanu Mehta, president of the Centre for Policy Research and a co-editor of the book, agrees. “There is now no public policy matter that is not mediated by the law.” He attributes this to three factors - the complexity of the administrative state; the spread of the vocabulary of rights; and the gridlock in legislative functioning and erosion in the credibility of other state institutions.

Read:Their greatest work: How Indians made Constitution a success

What helped the editors pull the volume together is the emergence of a new pool of scholars. As Khosla says, “We now have an incredibly exciting group of people who work at the intersection of law, policy and academia. The idea behind the volume was also to create a sense of an academic field.” The contributors came together for an intensive four-day workshop to share their work, and receive feedback, which refined their chapters.

What worked, what did not

In the introduction, the editors speak about the idea of ‘constitutional morality’, which in some ways underpins the Indian project.

Mehta explains its essence. “Constitutionalism is a certain commitment to living together with differences. It is the opposite of violence. It is also the opposite of excessive ideological narcissism. It is based on the recognition that what may come out in society may not necessarily be of one’s own preference, but one can live with it.”

But while this provided a degree of constitutional stability, it remains deeply contested.

One of India’s most marginalized sections, Dalits, are attached to the constitution – both because of BR Ambedkar’s role in its drafting and because they see in it safeguards and a pathway to mobility. But there are others – be it in Kashmir, or Nagaland, or tribals now with Maoists in central India – who fiercely object to the constitutional framework. When asked to explain this paradox, Mehta says, “It is not necessarily a paradox. Wherever the constitution has tried democratic incorporation, India – not just the constitution – has endured. Whenever we have put the weight behind authoritarian incorporation, there has been a backlash.”

Read: Ambedkar’s approach towards social change shaped India’s character

The other source of challenge for the constitution has come from both the extreme-right and the extreme-left. The former is uncomfortable with its emphasis on pluralism; the latter with its conception of democracy and the ‘class character’ of the state.

But over the years, while the right has come to largely accept the constitutional framework, the far-left has stayed away from it. Mehta offers some explanations. “The right has the advantage that it can piggy-back on majoritarianism to push through its agenda. The far-left, by its very ideology, is dismissive of bourgeoisie rights. The left has a problem with the theory of the state; the right has a problem with the theory of the nation.”

This makes the nature of the challenge from the right somewhat different; take the rise of the nationalism campaign. “Nationalism plays on fear which leads to the strengthening of the power of the executive. It also legitimizes the suppression of civil liberties. This is a danger right now, not just in India but globally, to constitutionalism,” says Mehta.

The Handbook offers insights into precisely this kind of interplay between Indian democracy and constitution. It tells us how current state institutions have evolved, and the relationship between the state and citizen and among citizens. It is a valuable resource for politicians, bureaucrats, judges, lawyers, scholars, journalists and students.

The Oxford Handbook of the Indian Constitution

Edited by Sujit Choudhry, Madhav Khosla, Pratap Bhanu Mehta

Oxford University Press

₹1195, PP 1048

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