Vol 30 No. 10 (November 2020) pp. 149 - 153INDIA’S FOUNDING MOMENT, THE CONSTITUTION OF A MOST SURPRISING DEMOCRACY, by Madhav Khosla. Harvard University Press, 2020. 219pp. Hardback $45.00. ISBN 978–0–674–98087–7.
Reviewed by Sital Kalantry, Clinical Professor of Law, Cornell Law School and Meher Dev, Advocate at the Supreme Court of India and a former Human Rights and Global Public Service Fellow at Columbia Law School. Emails: skalantry@cornell.edu and md3592@columbia.edu.
INDIA’S FOUNDING MOMENT, a book by political theorist and legal scholar Madhav Khosla, is a significant contribution towards understanding the birth of modern India and the historical moment at which the Indian democracy was founded. Many works have been written about imperial ideology. Khosla’s focus is how those who were colonized responded to that ideology. Khosla counters the narrative that India’s founding moment was historically insignificant and instead argues that it was a “paradigmatic democratic experience of the twentieth century”. Instead of using the imperial ideology of political absolutism that the British had offered, Khosla argues that India’s leaders chose to create a “self-sustaining democratic politics” through political education. Based on a meticulous study of works of Indian scholars, he is able to give us a number of insights into how India addressed “The Indian Problem” of self-government and democratization.
He calls for an inquiry into the question of how and why democracy came to be chosen for India rather than focusing on the functioning of Indian democracy. He spends significant time analyzing B.R. Ambedkar’s work. For example, when Khosla places emphasis on the “immediate” granting of universal suffrage. That was seen as an indispensable feature of Indian democracy to Ambedkar who rejected western notions of “gradual extension” of suffrage and saw limiting suffrage “on account of illiteracy” as a “kind of perversity”. It seemed unfair that people who were first denied an education were later denied suffrage because they were illiterate.
Khosla sees the choice of democracy for India as an intentional one. He engages in a study of the plan that emerged for India’s founding moment by examining three themes – codification (Chapter 1), centralization (Chapter 2), representation (Chapter 3). He argues that these themes were fundamental to the architecture of Indian democracy and the constitutional project. They were to make democratization possible by providing the mechanisms by which authority was to be sustained. These themes aimed to breakdown prevailing power structures and establish a collective political form that would be suitable to democratic politics.
In Chapter 1, Khosla argues that India’s constitution makers were aware that a shared understanding of democratic principles was necessary for India’s formation as a democratic polity. However, this shared understanding was missing among the larger population in India. There were fears that lack of consensus around democratic principles would lead to abuse of power and misguided behavior by voters, legislators, and judges. The Indian Constitution, he notes, thus came to be conceptualized as a pedagogical political educative tool for building a new civic [*150] culture of democracy. Extensive codification of democratic principles became a crucial aspect of India’s Constitution and contributed to its substantial length.
Khosla compels the readers to look beyond constitutional theories while analyzing the codification of India’s founding text. He acknowledges that there might be some basis for claims that Indian constitution makers adopted the theory of legal constitutionalism. They put their trust into the judiciary and provided for judicial review by courts to limit state power. On the other hand, he also acknowledges the view that Indian constitution makers adopted the theory of political constitutionalism. They put their trust in the legislature and provided for popular sovereignty. However, he opines that debates over whether Indian constitution makers adopted a legal constitutionalism approach or a political constitutional approach are flawed. They do not recognize that it was not possible during India’s founding moment to adopt one of these theories. These constitutional theories to some extent pre-suppose the existence of established democratic institutions – the judiciary, the legislature and the executive. During India’s founding, India’s constitution makers had to first establish these democratic institutions. He concludes that codification of democratic principles in India’s Constitution was not merely a means to enable or restrict state power. It was focused on creating a consensus on principles that would guide democratic institutions’ exercise of powers. It was a means to cultivate constitutional morality that meant building fidelity to constitutional norms and democratic principles.
Khosla contrasts the motivations of codification during the colonial period with the motivation of codification during India’s founding moment. For him, the motivation during the colonial period to codify was driven by the aim of the colonizers to control the colonized; for example, by codifying religious laws so that colonial judges do not have to rely on Hindu pundits. On the other hand, the motivation during India’s founding moment was to create a shared understanding of constitutional norms that would guide the behavior of democratic institutions and make Indians democratic citizens. He illustrates this new motivation for codification through three specific decisions of India’s constitution makers on what to codify in the constitution. Particularly, their decisions to codify “unenforceable” socioeconomic principles, limitations imposed on fundamental rights, and the standard of procedural due process.
For understanding the decision of India’s constitution makers to codify socio-economic goals, Khosla cites Ambedkar’s Memorandum and Draft Articles on the Rights of States and Minorities of 1947 and Constitutional Assembly speech of November 1948. He notes that India’s constitution makers conceptualized India as a social welfare state. It was crucial for them to create a shared understanding on socio-economic goals that would guide democratic institutions’ exercise of powers. He argues that this led to the decision to codify socio-economic principles under the chapter of “Directive Principles of State Policy.” He notes that these principles lack legal force and as a result legislators cannot be held accountable in a court of law for breaching these principles. However, legislators remain answerable for them before the electorate at election time and these principles serve to educate those in government of their aspirational duties.
Khosla, then, moves onto examining the decision of India’s constitution makers to codify “limitations” imposed on civil and political fundamental rights. He notes [*151] that there were fears around putting limitations into writing. Some argued that it would give the state an undesirable degree of presumptive power. It would dilute guarantees of civil and political fundamental rights. However, the final decision to codify limitations was based on the reasoning that it would provide stronger guarantees of protection of the rights. Khosla sees the incorporation of limitations to enable more rather than less freedom as rights could be limited only on enumerated grounds. He strengthens his support for codification of limitations imposed on fundamental rights by relying on Ambedkar’s views. For Ambedkar, the U.S. experience where the U.S. Supreme Court validated legislative limitations on rights based on state police power was not adaptable to the Indian situation. The matter of what legislative limitations could be constitutionally imposed on rights could not be entirely left to the hands of a new judiciary that was yet to cultivate constitutional morality. Thus, binding guidance was provided through codified constitutional limitations imposed on fundamental rights.
Finally, Khosla discusses the decision of India’s constitution makers to codify a procedural due process standard in Article 21 of the Indian Constitution over a substantive due process standard. He rejects the criticism of thinkers who saw the decision to incorporate procedural due process to be a choice in favor of state power and political constitutionalism. He cites B.N. Rau and Ambedkar to argue that a procedural due process standard was codified to ensure that welfare legislation would not be obstructed. Learning from the U.S. experience, Rau was of the opinion that substantive due process would be used to veto welfare legislation by judges.
In Chapter 2, Khosla asks why power came to be located in a centralized overarching state rather than localized regional autonomous units. He notes that the choice of a centralized state was a turn to modernity. It was a break away from India’s long held tradition of community rule that drew inspiration from Hind Swaraj. Situating powers in a central government was a means to liberate Indians from localism and establish modern state institutions. The motivation was to enable a new kind of inter-subjectivity by subjecting all Indians to an institutional state force that treated them as equal agents.
After contrasting arguments in favor of political pluralism and centralization, Khosla agrees with the Constituent Assembly’s decision to develop a framework for a centralized state authority. He links his support for centralization to the question of which bodies are capable of existing as states in the first place. His position is in alignment with the views of India’s founders such as Jawaharlal Nehru and Ambedkar. These founders saw centralization as a solution to Indian society’s need to change and believed that regional territories simply could not become states. He notes that Indian pluralists including Gandhi rejected centralization without elucidating how authority would be coordinated in pluralistic settings. He found anti-statist stances to be lacking rational accounts of how Indian villages would manage to resolve problems and preserve peace in the absence of a centralized state authority.
In Chapter 3, Khosla examines how India’s founders addressed the question of representation. He explains the reasons underlying the Constituent Assembly’s decision to adopt individualization of identity of the Indian citizen and reject communal representation. Representation based on individual identity allowed [*152] citizens to authorize another individual to be their representative. There was fluidity in this choice of authorization as citizens could choose their representatives based on their individual choice and unrestricted factors such as shared socio-economic goals. However, communal representation was based on a group religious identity. It placed citizens in static groups with a right restricted to authorize only someone belonging to their religion.
Khosla notes that India’s constitution makers found communal representation to be unsuitable to meet the challenges of India’s diversity. This diversity was initially considered to be incompatible with a centralized self-government. Khosla cites Sardar Patel, then Chairman of the Advisory Committee on Minorities and Fundamental Rights, who opined that separate electorates would sharpen communal differences and hinder the development of a healthy national life. The Indian partition had exposed the inability of communal representation to provide for a sustainable political environment.
Khosla contrasts the motives of communal representation in the colonial period to the motives of the Constituent Assembly of India to link representation to an individual citizen’s identity. While, communal representation was based on one’s predetermined identity, representation linked to individual citizens was based on representation of one’s vote. For India’s founders, India was ready for modern democratization and representation linked to citizens as individual political agents. They refused to continue perceiving Indian citizens as belonging to static religious identity based groups. These groups lacked the scope of being redefined as a “majority” or a “minority” group. They supported representation linked to citizens as individuals who can be constantly redefined and belong to majority or minority groups based on their political interests.
Lastly, Khosla discusses the “caste question”. He explores how the decision to allow for reservations based on caste was based on the same logic of rejecting communal representation. He cites Ambedkar’s 1936 “The Annihilation of Caste”. For Ambedkar, caste was an unnatural institution where not only labor but laborers were divided without any scope of fluidity and based on pre-assigned identities. The caste system was antithetical to equality and fraternity; values essential to Indian democracy. It was deemed necessary that the Indian Constitution diminish the power of dominant groups in order to achieve the individualization of identity. Khosla closes his inquiry into the caste question by noting the difference in approach of Ambedkar and Gandhi. He notes that Ambedkar saw Dalits as a distinct political category, whereas Gandhi viewed such a political identification of Dalits as a form of segregation. Gandhi sought to delegitimize the caste system, but he identified society rather than the state as the driver of change. However, the Constitution’s final arrangement on caste reflects Ambedkar’s views and allows for caste-based reservations.
Khosla concludes his book by addressing contemporary concerns around capacity of societies to meet conditions required to achieve democracy. These conditions are linked to the levels of literacy and socio-economic growth in a society. He puts forth an interesting analogy between contemporary concerns around those conditions and the concerns raised by imperialistic ideologists during India’s founding. The concerns around capacity of societies to achieve democratization [*153] had led imperialists to conclude that democracy was not for all. India too was seen to lack these conditions by the imperialistic project of the nineteenth century. In contrast to the imperialistic project, Khosla sees a constructivist project at the heart of India’s founding that made democracy possible for India. He reminds us of how India was successful in creating a democratic citizen without having met imperialistic conditions. He highlights how India’s founding is a critical reference point for contemporary revolutions occurring in societies characterized by low levels of education and economic growth, ethnic and social divisions, and demands of immediate universal suffrage rather than gradual democratization. For him, the global challenge for constitutionalism since the mid-twentieth century has been to construct democracy in such societies. For him, taking inspiration from India’s founding, the solution for such societies lies in regarding the constitution as a type of “textbook-pedagogical apparatus that can bring into being a certain kind of citizen” essential for a democracy.
Khosla’s insights into INDIA’S FOUNDING MOMENT come at a critical time when India and many countries in the world are facing right-wing authoritarianism, communal polarization, weakening of democratic institutions and neglect of socio-economic and other constitutional goals. The shared understanding of democratic principles that was codified in the Indian Constitution is being put to test today.
© Copyright 2020 by the authors Sital Kalantry and Meher Dev.
