Review: India’s Founding Moment by Madhav Khosla
The resilience of India’s democratic regime, despite its deeply unpropitious conditions in 1947 and serial challenges in subsequent decades, has inspired political theorists, social scientists and foreign observers for a long time. Given the severe human deprivations and manifold social inequalities that marked its diverse citizenry, the odds against its survival were high. Many scholars have also investigated how democracy has fared in India since independence: its quality, scope and depth, advances and setbacks, successes and failures. Why the nationalist movement decided to establish a modern representative democracy and the reasons for its specific constitutional architecture, however, has received considerably less attention. In recent years, a number of scholars have trespassed the boundaries of law, history and the social sciences to pursue these questions. These range from Steven Wilkinson’s systematic examination of how India’s civilian leaders made its military safe for democracy in Army and Nation, and Ornit Shani’s rich archival study of how its bureaucratic mandarins created the electorate in How India Became Democratic, to pioneering explorations of the ways ordinary citizens, progressive lawyers and apex judges have used, interpreted and radicalized the Constitution, such as The People’s Constitution by Rohit De and The Transformative Constitution by Gautam Bhatia.
India’s Founding Moment: The Constitution of a Most Surprising Democracy, a much anticipated book by Madhav Khosla, is an outstanding contribution to these debates.
Three key elements, according to Khosla, defined Indian democracy at its founding: “the explication of rules through codification; the existence of an overarching state; and representation centered on individuals”. Codification was necessary to explicate the rule of law. Yet it was also a “pedagogical tool” to fashion common norms and share practices of democratic citizenship and popular self-rule among a citizenry that had been colonial subjects as well as a political instrument to direct legislators and judges. A centralized state apparatus was essential to establish clear external boundaries necessary to ensure political sovereignty and enable planned development. But it was also required to reorder the deeply unequal relations that marked everyday social life in the princely states and myriad villages of the nation. Finally, a liberal conception of political representation was necessary to overcome the predefined collective identities of caste and religion, which severely restricted individual freedom. Crucially for Khosla, all three elements were of a piece, mutually supportive elements that cohered.
Three features distinguish India’s Founding Moment. First, it situates the constitution of democracy in India in a longer historical narrative, equal in significance to the revolutions of America in 1776 and France in 1789, whose momentous events continue to dominate our political imaginary of the birth of modern democracy. Its establishment in India arguably comprises a more relevant paradigm for Latin America, Africa and Asia, contending against the myriad legacies of colonialism. Many political scientists, especially of a conservative and neocolonial bent, have argued similarly. But their accounts and depictions of democracy in the postcolonial world are often negative: flailing derivative copies of the real thing. The durability of modern Indian democracy against unprecedented odds provides a historically significant rejoinder.
Second, the book comprises a remarkably elegant synthesis of constitutional theory, Indian intellectual history and western political thought. Despite its brevity, Khosla weaves a rich tapestry of ideas and thinkers. These include the observations and arguments of well-known figures in the western canon – from Hegel, Alexis de Tocqueville and John Stuart Mill to John Dewey and Carl Schmitt — as well as the Indian nationalist movement — principally Jawaharlal Nehru, Mohandas Gandhi, Bhim Rao Ambedkar, Abul Kalam Azad and Vallabhbhai Patel. Yet readers also encounter relatively less recognized individuals, such as Alladi Krishnaswami Ayyar, KM Munshi and BN Rau, whose ideas and decisions played a pivotal role in drafting the Constitution, among many others. In doing so, Khosla demonstrates how seriously India’s constitutional architects engaged fundamental questions, rival positions in the nationalist movement and leading western thinkers in order to devise a political regime most capable to addressing historically unique dilemmas. The intellectual confidence and political self-understanding they displayed in confronting vital questions is striking.
Third, Khosla demonstrates the importance of the Constituent Assembly debates in the making of the constitution, disposing of two rival accounts. On the one hand, through close reading of legal documents and assembly debates, he shows that India’s constitutional settlement was not simply a logical evolutionary outcome of the ideas of the nationalist movement. Serious differences existed within the latter over questions of codification, statehood and representation in particular. On the other hand, he demonstrates how the Constitution represented a significant break with the various colonial acts introduced by the Raj, even if the final document included many earlier provisions. Simply put, the latter failed to offer genuine rights, legislative powers or judicial review to its subjects. The granting of universal adult suffrage to all citizens, regardless of their education, status or wealth, was a revolutionary political act. It demonstrated the constitutional founders’ quintessentially modern belief that politics was a relatively autonomous realm of imagination, deliberation and judgment. Indeed, their decision to enable subsequent generations to amend the Constitution with relative ease underscored their outlook.
As intellectual history, India’s Founding Moment seeks to recover the intentions, motivations and strategies of the main protagonists, situating these in their precise historical context. As constitutional theory, it provides careful legal analysis of many provisions, cases and debates. In seeking to explain and assess how the founders tackled several constitutional dilemmas, the book endorses their resolution of these predicaments on normative, legal and political grounds. Indeed, Khosla offers them a remarkably sympathetic reading.
Not every reader will agree. First, some will question the ideological commitments and political motivations of the founding constitutional architects, many of whom ruled the nation post independence, to protect individual liberties and emancipate the poorest citizens from absolute deprivation. The fear India’s constitutional architects had towards the ‘grammar of anarchy’ in general, and the reliability of judges in particular, may have been genuine. But the restriction of civil liberties and political rights in contested regions post independence, in the name of public order and national security, has often reflected the misuse and abuse of power. Similarly, the vision of power-sharing presented by Mohammad Ali Jinnah may have been doomed to fail since the problem of minorities within a communal framework defied any simple institutional resolution. Yet, many will still rue the poor judgment, partisan interests and the will to power that accelerated the tragedy of Partition. Lastly, the failure of the Congress and its main electoral rivals in the early post-independence decades to invest sufficiently in basic education, primary health care and essential public services for all citizens, and the inadequacy of land reform efforts in most of the country, betrayed their constitutional vow to break down many structural barriers to freedom and equality. Of course, the contingencies, pressures and constraints of governing a country as challenging as India would inevitably test the intentions, skills and judgment of the most capable political leadership. However, the newly empowered representatives of its democracy made electoral calculations and struck political compromises to satisfy their social interests and will to power in many instances. Hence the progressive aspirations codified in the Directed Principles of State Policy, which Ambedkar believed would hold elected representatives to account at the polls, were regularly breached. The constitutionalization of democracy in India clearly represented a decisive historic rupture. Despite much progress, however, the common norms and shared practices of democratic citizenship that defined India’s constitutional morality remain unrealized high ideals for too many citizens in various realms.
Second, it is clear that such failures reflected powerful structural constraints of various kinds. Theories of constructivism stress the plasticity of the social world in principle. Yet, political autonomy is a relative concept. Its realization in any given context is an empirical matter. The power to construct and reconfigure any demos turns on the balance between state capacity and social forces at a given historical moment. The devastating experience of war and occupation, causing massive social upheaval, greatly expanded the autonomy enjoyed by political rulers of China, South Korea and Taiwan in the mid-twentieth century. The construction of powerful organizational apparatuses in each of these states, guided by a supreme party, took advantage of these conditions for better and worse. India’s political leaders and state elites, in contrast, faced greater obstacles and resistance. The power of any constitution to reconfigure a society presumes these wider causal factors. Similarly, Khosla rightly contends that a democratic politics based on individual citizens offers the possibility of redefining who belongs to a majority and whom to a minority across multiple arenas. Yet, shifting electoral majorities can easily coincide with persistent social cleavages. In sum, the founding of India’s constitutional democracy represented a political revolution. But its structure clearly failed to ensure, and even frustrated, the social revolution made in its name.
Third, Khosla explicates how the constitutional founders justified the centralized political apparatus that India established at independence. He rightly points out that its principal rival visions, notably pluralism, regionalism and localism, were less well positioned to eradicate many social practices that undermined democratic equality. Moreover, the power of the Centre to reorder internal relations could often strengthen the Union, as shown by the integration of princely states and reorganization of states along linguistic-regional lines. Modern Indian democracy required the common political authority of a state. Yet, the asymmetrical political rights, entitlements and obligations enjoyed by contested regions of the Union, which often employ consociational power-sharing formulas, have also played a key role in maintaining national unity. Indeed, the centralization of powers in New Delhi, as shown in subsequent decades, could be either too little or too much. On the one hand, it impeded the Centre from removing certain impediments to democratic equality that remained under the remit of states, most notably through land reform. On the other, it later allowed the Centre to portray demands by opposition parties for greater regional autonomy as existential threats to national unity. It was precisely the suppression of legitimate political demands by New Delhi, on grounds that its democratically elected government embodied the nation, that endangered the integrity of India.
The scope and meaning of rights, however codified, are clearly shaped by the conduct of ruling political elites. They are also shaped by the beliefs, practices and actions of ordinary citizens. Modern Indian democracy faces grave, arguably unprecedented, threats on the seventieth anniversary of its Constitution. Saving the former requires a dramatic revitalization of the latter. It is precisely when basic democratic rights are being openly subverted that constitutional morality faces its greatest test. The publication of India’s Founding Moment, by illuminating how and why its constitutional democracy came into being, could not have been timelier.
Sanjay Ruparelia is the author of Divided We Govern: Coalition Politics in Modern India (OUP, 2015). He holds the Jarislowsky Democracy Chair at Ryerson University in Toronto, Canada