The Constitution of India is one of the oldest documents of governance in the world. When the Constitution was adopted by the Constituent Assembly of India on 26 November, 1949, after intense debates and consultations that had lasted almost three years, the president of the Assembly, Rajendra Prasad spoke at length about the tremendous achievement.
In spite of the huge population, Prasad said, “we have succeeded in framing a Constitution which covers the whole of it.” Before explaining the features and the methodology the Assembly had adopted, he said that his purpose was not to appraise the value of the work done or the merits and demerits of the Constitution. He said: “I am content to leave that to others and to posterity.”
Madhav Khosla’s recent book, India’s Founding Moment: The Constitution of a Most Surprising Democracy, examines the commitment and the vision behind the making of the Constitution of the world’s largest democracy. India’s revolution was big because the problem it had to solve was big. However, as Khosla writes, quoting Jawaharlal Nehru, “Indians were yet to grasp the import of their revolution.”
Opting for a democracy was a risk, according to the “warnings” from political theorists and constitutional experts in the West, who considered Indians were considered unfit for democracy by the West. They belonged to a subject race, and had to be subjected, as Edward Said would note in his Orientalism while exploring the Western notions of the East.
In the west, universal adult suffrage was not a sudden, radical decision. It had been adopted after certain conditions had been fulfilled. Nehru was aware of the disservice colonialism had done to India by turning the entire population into a subject race. Still, he insisted that Constitution-making and democratisation take place simultaneously, he did not want to wait for these so-called favourable conditions to emerge.
Nehru was validating Immanuel Kant in some senses: “Freedom is the precondition for acquiring the maturity for freedom, not a gift to be granted when such freedom is achieved.” India’s founders saw democratisation as a form of education, argues Khosla in his book, a way to responsible politics.
The founding impulse toward codification
The promise of codification, writes Khosla, was to create common meanings around democratic principles. Codification of the Constitution was no ordinary law-making – it was also understood to be a way to educate people about the fundamentals, the reasoning behind every right and its place in the corridors of the Constitution. It was a pedagogy of sorts aimed at developing a vocabulary of constitutionalism for the free citizens of a free country. It was a charter of liberty and it had to be self-contained.
The place of socioeconomic rights in the Directive Principles of State Policy is one area which Khosla explores carefully. DPSPs are binding on the state but are non-justiciable. While BR Ambedkar drew attention to their role in deciding electoral results, BN Rau said that they would have “an educative value.” In recent years, constitutional interpretation has seen “the growth of positive obligations; the embrace of substantive equality; and the proliferation of socioeconomic rights”, as Murray Wesson outs it in “The Limits of Constitutional Justice” in Public Law Review.
Socio-economic rights place a positive duty on the state to alleviate disadvantages. The Supreme Court has also acknowledged the role of DPSPs as “framework values” to widen the scope of fundamental rights, as Gautam Bhatia argues in the The Transformative Constitution: A Radical Biography in Nine Acts.
The aim of centralisation
The aim of the founders of India was to give its citizens a new identity transcending religion, caste and race – they would be equal and independent in all matters. How would they acquire this identity? Did the solution lie in centralisation?
Actually, Ambedkar recognised the Constitution as federal in nature despite the fact that the centre was given extraordinary power to override the states. Positional perspectives can often determine how one interprets the functioning of the Constitution. Many constitutional experts call the Indian system a quasi-federal one, ie, one that has both unitary and federal characters. Kenneth Wheare termed it “a unitary state with subsidiary federal features rather than a federal state with subsidiary unitary features”.
This opinion is often fact-checked by practice – how a democracy actually functions when it comes to power-sharing. Addressing this question, Khosla says this characterisation of the Constitution as “imperfectly federal or quasi-federal” is “fallacious”. In his view, asserting that India is a federation denies the reality and practice of centre-state relations in India. From the undue exercise of emergency powers to interference by centrally-appointed governors, there have always been attempts to undermine the autonomy of the state governments, which the latter have constantly expressed displeasure over.
Khosla outlines how questions were raised in the Constituent Assembly about the possibility of such an eventuality. Some members feared that a strong centre would make it a power of oppression and would result in the weakening of liberties. One member went to the extent of calling it “Indian imperialism”.
Still, centralisation held great promise to those who drafted the Constitution. It found a major supporter in Ambedkar, who was aware of the potential of social groups in the states to crush individual aspirations. Centralisation thus allowed the individual to become a unit of organisation, and discarded group autonomy. To distance power from local actors, writes Khosla, meant that power could be exercised progressively. Its aim was to situate Indians as one people so that they could rise above the bounded sphere of the local.
In Identity and Violence: The Illusion of Destiny, Amartya Sen examines how imposing a singular identity on a group of people can often give rise to irreconcilable differences in its relation with other groups. One predominant identity often shadows the other identities that we may possess as individuals or groups, leading to confrontations.
While Pakistan was founded on religious lines, India chose to remain secular. Khosla holds MK Gandhi and Nehru responsible for the failure of the Indian National Congress at addressing the issues of the Muslim League. Their rejection of communal politics, writes Khosla, was not articulated alongside a positive theory. It was a result of denial and not engagement. The reluctance to accept the demands of Muslims by the Hindu nationalists and the appeasement policies of the Congress could not therefore resolve this issue of conflicting identities and aspirations.
Identity politics was deemed a stumbling block in the way of development after independence, and communal electorates were discouraged. Communal representation was flawed, no doubt, but the “assimilation” that it was supposed to bring actually became a huge source of discrimination. Over the years educational issues and employment insecurity for the Muslim population have grown severely. Muslims face growing political and social hurdles in accessing education.
This challenge of underrepresentation extends to other forms of exclusion as well. Representation of Muslims in the Lok Sabha (3.3 percent) and the Rajya Sabha(6.96 percent) – in the 2019 general elections – is very low compared to the share of the community in the population. The Constitution failed to ensure representation for India’s Muslim population in legislative bodies in numbers commensurate with their share of the population, as Abhinav Chandrachud argues in Republic of Religion.
Caste-based reservation was granted on different grounds. Khosla’s views on this are justified. The aim was to liberate the individual and unchain them from imposed identities, but keen observation will make it clear that caste-based reservation has not fulfilled its purpose of unchaining the individual from imposed identities. Neither group identity in case of caste nor assimilation in case of religion has made a better deal when it comes to the practical aspects of representation.
Khosla’s academic excellence is supplemented by his ability to combine political theory and constitutional theory so as to give his readers a better view of the reasoning behind a particular decision. The timing of the book is important, given recent developments in the body politic.
At 70, the Constitution of India lives on – and lives on surprisingly well. Khosla’s excellent book testifies to this. Without perceiving the imagination and intent of the founders of the Constitution, we cannot realise its potential. This is a work that goes a long way to ensure this. It explores the foundations of the Constitution of a most surprising democracy at a time when its Preamble is being read out loudly in the streets of India.
India’s Founding Moment: The Constitution of a Most Surprising Democracy, Madhav Khosla, Harvard University Press.
Aurif Muzafar is a lawyer based in Kashmir. Human rights and constitutional theory fascinate him.