Can a constitution defend itself 9780674980877

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Global Intellectual History

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Can a constitution defend itself? Sudipta Kaviraj To cite this article: Sudipta Kaviraj (2022): Can a constitution defend itself?, Global Intellectual History, DOI: 10.1080/23801883.2021.1962580 To link to this article: https://doi.org/10.1080/23801883.2021.1962580

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GLOBAL INTELLECTUAL HISTORY https://doi.org/10.1080/23801883.2021.1962580

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Can a constitution defend itself? Sudipta Kaviraj Department of Middle Eastern, South Asian and African Studies (MESAAS), Columbia University, New York, USA

India’s Founding Moment. The constitution of a most surprising democracy, by Madhav Khosla, Cambridge, Harvard University Press, 2020, 240 pp., £36.95 (hardback), ISBN: 9780674980877

History, a Bengali satirist said, is constantly lying in wait to play tricks on us. In its latest prank, history has cast doubt on an idea that works as a premise in Khosla’s book: but ironically, that has made his book more rather than less relevant. Observers of constitutional have been presented with startling surprise over the last five years. It was standard practice, in studies of democracy, to make a distinction between societies of the advanced West where democratic practices were unshakably firm, and third world aspirants to democratic life where these were permanently insecure. A central question therefore was what were the ways in which democracy could secure itself. Trump’s tenure has shaken all observers into the realization that, not just for Athenians of Pericles’s times, but for all – including Americans today, eternal vigilance is the price of liberty. Sometimes it is hard to see if even that price is enough. It is interesting to discuss constitutionalism sitting inside a polity in which a President elected by a minority of voters, had already turned some institutions into sultanist agencies of his personal intentions, and threatened that elections are meaningless unless he was victorious. He felt he could persuade the Supreme Court – tilted by an appointment the previous week – to cancel ballots on a massive scale and present him with a judicial victory snatched from the jaws of electoral defeat. He defied for four years most rules and conventions of democratic government, eventually launching an unsuccessful insurrection to overturn the voters’ verdict. Who could predict or even believe five years back that history had this trick up its sleeve? The question that is behind Khosla’s excellent book is this: and this is really a good time to ask a general question – can a constitution defend itself? To parse it more fully, can a constitution – just the power of words on paper – protect itself from defiant internal functionaries? This is the question faced today by the two democracies that boast their primacy in the world – the earliest and the largest. There could not be a better time for Madhav Khosla’s examination of the creation of the Indian constitution, nor a better time and place for a discussion of the questions at its centre: is it a parochial concern for India, or a general one for CONTACT Sudipta Kaviraj [email protected] Department of Middle Eastern, South Asian and African Studies, Columbia University, Knox Hall, 606, 122 Street, New York, NY 10027, USA © 2021 Informa UK Limited, trading as Taylor & Francis Group

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the democratic world? That is why this discussion deserves attention from not just students of Indian democracy, but of democratic constitutionalism in general. Interestingly, recent events have upset a distinction in Madhav Khosla’s book – settled and evolved democracies of the West, and a new postcolonial democracy which did not have the circumstances long regarded as its ‘preconditions’. However, it is likely that the assault on the two constitutions might have historically different outcomes. In spite of the unbelievable ways in which the Trump administration sought to distort and undermine the constitutional apparatus, American democracy is likely to survive. Justices appointed by flouting conventions, instead of acting with fealty, may defect to the constitutional side, upholding conventional expectations. Overlooking the small improprieties of their appointments, they might strike down the large illegalities – like overturning the results of an election through the judicial process. Admittedly, democratic government depends upon proper functioning of non-state institutions like the press and educational bodies which organize production and circulation of knowledge. In the US, despite the Trump administration’s sustained efforts, these institutions refused to be suborned. In India, by contrast, the press has in major parts, sidled up to the side of the government, and educational institutions have mostly fallen on their knees. Khosla’s work does not directly attend to such matters, but these concerns relate to a question at the centre of Khosla’s analysis– can a constitution defend itself? The clarity of Khosla’s discussion prompts us to interpret the question itself: there is an expectation in the idea of democratic constitutionalism that there is something so intrinsically rationally persuasive and affectively comforting about it, that once enacted as a purely legal document, a constitution will create conditions for its own sustenance. What are these self-sustaining techniques? Are they likely to be successful? Does their likelihood of success depend on or vary according to historical and cultural conditions? Nothing is a more important historical and legal question in Indian life, and since what happens in the US affects the world, in the life of the world today. Khosla’s work deftly combines three strands of disciplinary thinking not commonly braided together – legal analysis, arguments of principle from political theory, and careful historical contextualization of juridical debates. Unlike standard legal discussion, which cleave impatiently to juridical questions, ignoring their discursive or sociological setting, Khosla opens his examination with an unconventional consideration of ‘preconditions’. Preconditions, as a term, clearly works through two separate meanings – chronological and logical/theoretical. In its first meaning, an analysis of preconditions examines the actual circumstances in European history through which disparate democratic legal instruments were fashioned. Such origins often depended heavily on entirely transient conditions – a temporary weakness of the Crown before it agreed to sign the Magna Charta, or the exact setting for the Declaration of Rights of Citizens in France. Subsequently, many of the legal-juridical instruments that these events produced are ‘theorized’ – i.e. the juridical devices are now considered so vital as requirements that no constitutional system can be conceptually considered as democratic without displaying such legal features. Conditions, as a term, is transposed from a historical to a theoretical meaning. Preconditions of the first kind are historical; in the second instance, these have been turned into logical, or ‘theoretical’ ones for the prior judgment regarding the democratic nature of a constitution.

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If we think closely, the concept – ‘precondition’ – is being used in cases like the establishment of constitutional democracy in India in two senses – the first is a test of the character of the constitution in which these theoretical preconditions are embedded in the judgement itself; and secondly, to ask if cultural and social ‘pre-conditions’ exist which will allow such a constitution to last and become entrenched, such that the existence of these legal forms can be taken for granted. When one is folded into the other, it yields the question that Khosla’s work starts with: when can the constitution produce conditions of its own security and sustenance? Other scholars of Indian constitutionalism have raised the question of preconditions with clarity – for example, Uday Mehta’s insistence on the ‘Jacobin’ character of a constitution which seeks to establish a secular state in the midst of a deeply religious society, or to reduce the practice of caste in social behaviour.1 What Khosla brings to this ongoing discussion is a startling twist from a legal scholar’s angle: can a constitution create its own conditions of success? This is not a trifling or redundant issue. All constitutions inaugurated in the period of decolonization had this question at heart. The preconditional argument – which underlay the skepticism of colonial authors about prospects of democracy in India – surveyed European history and noted the chronologically prior development of several traits: capitalism and initiation of economic prosperity, individuation of society and decay of gemeinschaftlich forms of collective belonging, a prior history of state secularism, a slow secularization of culture, growth of literacy, prevalence of large and relatively efficient bureaucracies, acceptance of a stable definition of the people-nation (ie, who constitute the nation), pre-democratic constitutionalism through legacies of a rechtstaat. All these features of history were in place before modern democracy emerged in the last decades of the nineteenth century – through a complex and interactive set of juridical occurrences – granting of universal male suffrage in Germany in 1871and universal suffrage in England in 1928. It was plausible to argue that those were the preconditions for the establishment – certainly the success- of democracy. Acceptance of this precondition argument would have resulted in an impossibility theorem for India. In a sense, one could argue that just as Lenin’s claim that a socialist revolution could happen in the most backward capitalist country in Europe was a refutation of all previous certitudes of Marxist thought, the claim – made only by a minority of the Indian political elite– that a country that was poor, clearly dominated by collective affiliations and affects of caste and religion, fragmented between numerous long-standing regional cultures – could become a successful democracy – similarly defied the pre-existing common sense of political theory. Therefore the central task for the constitution-makers was to frame its rules in such a way that these pre-existing ‘negative’ conditions could not destroy it: rather its rules could, over time, alter those conditions. This could not be achieved by legal skills alone. It required serious deconstruction of basic arguments of political theory. Among legal studies, Madhav Khosla’s work stands out for the unusually heavy emphasis it places on the work of political theory in the making of the constitution. He regards the establishment of Indian democracy as not just a marvel of statesmanship and political craft, but in equal measure, of political theory. Khosla argues correctly that any expansion of democracy today – beyond the circle of Western states – would have to negotiate similar theoretical and and historical challenges. Democracy, if it spreads across the world, would look more like the Indian example than Western ones. That is why the story of Indian democracy,

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and the very act of its founding – the decision about whether it was at all possible or not – is worth critical examination, and should attract attention of not just scholars of Indian politics. I am in so much agreement with the main arguments of the book that I feel a bit redundant as a reviewer; but I shall try to bring out what I consider its real achievements. The introduction begins, I think correctly, with an exposition of what was involved in the founding of three entirely new concepts in European modernity – of a new contractarian, ie, ‘self-creating’ conception of society, a new idea of an economy, and a slow maturation of a new semantic content inside the category of the state. Taken together, these three interconnected entities formed the categorial background to constitutional thinking. In a strict sense, these categories were new, unfamiliar, as was the business of thinking about the place of politics in the social universe through them. The constitution was being constructed in a society which lacked the existence of a prior liberal tradition of theory and practice. Although Indian political thought had started out with major liberal statements in the works of Naoroji, R C Dutt, Ranade and Gokhale, this strand was rapidly overrun by the development of Leftist and Gandhian thought. Both of these traditions devalued liberal institutional mechanisms and mistrusted the philosophic justifications behind them.2 So India, at the time of constitution-making, had neither the bigger background preconditions, nor the ‘inner’ intellectual precondition of a robust liberal tradition. How could the constitution succeed? At the centre of Khosla’s work is a story of a remarkable intellectual achievement: it shows how a small but clearheaded group, led by Nehru and Ambedkar, crafted the philosophical-theoretical justification behind the capacious and intricate institutional structure the Indian constitution established. India turned out to be the most surprising democracy there has ever been3, defying nearly all of the preconditions required by prior political theory. Like an immense juridical cobweb, the Constituent Assembly sought to ‘create’ a structure of democratic constitutionalism ‘out of nothing’. Democratic foundings are usually seen as purely political rather than daring intellectual acts. The creation of constitutions after decolonization is commonly seen as a search by a small coterie of lawyers for appropriate legal provisions from various pre-existing Western constitutions to produce a derivative combinatory that nationalist leaders found appropriate for their local settings. Leaving this tiresome picture of legal shopping, Khosla presents the process as an exciting, highly innovative, highly intensive project of political theorizing – in which these leaders countered existing theoretical orthodoxies, answered long standing skeptical colonial arguments, and in a thinking of great subtlety and complexity, argued out a case for the possibility of postcolonial democracy. Instead of accepting the idea that such constitutions are ‘derivative’ of existing Western thinking, he surprises us with a demonstration that the argument for the possibility of postcolonial democracy refuted some of the most profound and widely accepted axioms of current thinking. He views the constitution as an example of ‘swaraj in ideas’, a result of decolonizing thought. An example is the astounding quote from Ambedkar about the utter worthlessness of the constitutions Bentham devised: Jeremy Bentham jumped at the opportunity of drafting constitutions for these new countries … When they went there, they were tried by the South American people for a few years. And afterward every constitution that was framed by Jeremy Bentham broke

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to pieces, and they did not know what to do with the surplus copies that had arrived: and all the South American people decided that should be burnt publicly. 4

Effective constitutionalism was not, because it could not be, based on a derivative reading of Western theory or juridical precedents. On this reading, the Constituent Assembly was a great theatre of ‘de-colonial’ jurisprudence. A particularly startling feature of this discussion was that traditionalists like the Hindu nationalist members offered echoes of European certitudes about the ideas of the nation and democracy. Figures like Ambedkar and Nehru, conventionally seen as being driven by Western liberal or socialist ideas, offered solutions that deviated sharply from Western precedents. Underlying the juridical analyses, Khosla also offers a reassessment of the theoretical positions of differing groups. Cutting away inessentials, Khosla focuses on the three central enterprises of the constitution: 1. providing the people with a ‘grammar’ of constitutional life; 2. locating the most forceful engine of state-power at the centre – away from the localism of social life in rural India – cleverly playing a modernist state power against entrenched social power of pre-modern customs of caste and its dominant elites; and 3. using the constitution for a juridical interpellation to modern rights-bearing individuals against the traditional selfunderstandings and self-identifications of ordinary voters. If the constitution presented a grammar of democratic life, it was very long. A political grammar, it could be argued, would be most effective if it is clear and short – like the American constitution, easily understandable in its laconic vivacity to ordinary citizens. Again, Khosla pays attention to a feature of the constitution that is so obvious that it is generally ignored as a ‘problem’. He analyses the reasoning behind an obviously startling feature of the Indian constitution – its unusual and forbidding length. It has been noted that in one sense it is a lawyer’s document, not the citizen’s. Profusion of legal detail makes it opaque and overwhelming for an average citizen. Schmitt correctly noted that many of its clauses would be left to ordinary statutory law in usual democratic systems.5 But the whole point, Khosla shows, is precisely that the circumstances of origin are not ordinary. The document itself has to rectify the absence of background arguments stating and justifying high liberal principles. So, the Indian constitution does two – seemingly rather contrary – things. On one side, it goes into high philosophical principles, and at the other end, into legal minutiae – neither of which would have been required in a pre-existing liberal culture. Because there is no prior political theory, the constitution has to ‘theorize’ itself; because there is no political culture of shared understanding, the constitution has to spell out to its allegedly authoring people what the items of these shared understandings are, and how to show that these exist. The world of politics is a world brought into existence by words; and the more numerous the words, the more substantive that world is. It is true, as Schmitt noted negatively, that the Indian constitution is not content with setting up a legislature, it also enacts some laws. But the juridical ground is so sparse, that without some detail the network of initial legality would not survive. The text had to be explicit because it had to spell out the underlying norms of democratic functioning. ‘Democracy is only a top-dressing on an Indian soil which is essentially undemocratic’, Ambedkar feared. Deep codification which stretches upward and reaches into details downward is due to that reason: the top layer has to infect and transform the soil below.

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Again, Khosla’s fascinating chapter on the location of power at the centre rather than the constituent units shows us the depth and richness of the field of arguments – the champs – lying behind the decision in favour of a highly centralized state. Constitution makers had to take into account a long tradition of debate about the nature of indigenous society. Rejecting the usual idea that the question – where to locate the dominant power – at the centre or the units – was decided by a rebound from the grim experience of state failure during partition, Khosla takes us through the deep background of prior argumentation against which the decision for a centralized state was adopted. He carefully untangles for us the arguments of the purvapaksa – a grasp of which alone makes the paksa – the present argument – intelligible. Khosla attentively follows the elaboration of two arguments which saw democracy as a centreing of political power in the village – residing close to the people. Colonialism placed the unanswerable sovereign power at the Centre, at a great distance from ordinary people. Negation of colonial dominance, it was held, should mean weakening the central authority, and returning power back to the villages – where people lived. Democracy, it was plausibly argued, was identical with decentralization. Of the two versions of this argument, the more familiar came from Gandhi, but Khosla analyses the more intricate ‘pluralist’ argument from authors like Radhakamal Mukherjee. He also dissects the trajectory of the counter-argument – again advanced by Nehru and Ambedkar – that rejected Gandhi’s view that liberal modernity would be English rule without the Englishman, and cancellation of colonialism meant revivification of the village-centered political life of the past. Drawing the case for industrialization as a cure for India’s poverty from the writings of the thoughtful industrialist, M Visvesvaraiya, Khosla demonstrates how the modernists persuasively showed that the argument for decentralization as democracy was a meretricious advocacy for perpetuation of local power – entirely unlikely to eradicate the domination of the twin evils of caste and zamindari, two institutions that obstructed democracy in separate ways. True political democracy required the force of the state to be located at the Center – where it could not be usurped in tiny fragments by local magnates. Decentralization was a deceptive ideal – in the name of being close to the soil, it would hand power over to those who were the most intimate oppressors of the ordinary people. It was only a distant central government, unconstrained by local power, but animated by modernist ideals, that could alter the character of India’s village life. The third large argument of the book turns to another fundamental concern of democratic theory – on the question of the relation between identity and representation – which, in the Indian setting, must be asked at two levels. Khosla analyses the question itself with great clarity and answers it with care and sophistication. In the European context, theorists debated and scrutinized the deficiencies of majority rule in great detail. But the majority is, in the main, a decisional majority – ie, a majority produced by the demand for a decision regarding some specific question over which political groups disagree. We could call that a question-based majority. The evil of tyranny that Tocqueville and Mill worry about is principally of this kind, unopposed dominance of a decisional majority, not a majority based on identity – which will obviously function in an entirely different way. When discussions on democratic procedure began in India, in the early decades of the twentieth century, by a sleight of hand, the ‘majority’ that caused concern, and the minority status that was dreaded, are not based on decisions, but on identity. Decisional majorities constantly change. Identity majorities

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are unchangeable, permanently entrached in the society’s essential structure. It is strange that Indian political thinkers in the early decades of the twentieth century do not ask a clear question about this substitution: and academic commentators also do not ask why these thinkers did not ask that question. Why do Indian thinkers not even notice this substitution, let alone question it? A long tradition of Orientalist history stood behind this substitution, but also the history of Western modernity itself. In his third chapter Khosla offers an excellent fine-grained history of these debates. He shows how the discussion of representation from the start uses a territorial frame, and how this results in the parallel growth of two views which think of the ‘nation’ as a single homogeneous people – the strand of Hindu nationalism in Savarkar and of Muslim nationalism in Iqbal and Jinnah. These are fiercely opposed in their political designs, but united in their underlying conception of what a nation is. Framers of the constitution had to direct the constitution away from this European conception of national identity, and replace it with a conception far more complex, and without prcedent. The final part of the chapter offers an excellent account of the reasoning behind the different solutions the constitution proposed for religious identity and caste identity. Khosla provides the clearest exposition of the theoretical reasoning behind this remarkable difference – why the constitution treats religious identity without giving it reservation, or affirmative action advantages, but does to castes. Religious identities were not meant to be liquidated, but kept from meddling in public life. Caste identities, by contrast, were to be ideally annihilated. In Nehru’s view the ‘so-called’ Hindu-Muslim problem is not a real problem6, while that of caste is the most profound. Ambedkar’s views on partition and the religious question are quite different, but they contain acute understanding of the juridical implications. ‘Ambedkar’s writings are worth investigating’, Khosla argues, ‘because he was among the first thinkers to theorize about the possibilities and limitations of group representation under democratic conditions.’7 At the same time, Ambedkar and the framers see group identity as a complex phenomenon – the dogma of pre-destination ‘prevented people from being themselves’.8 The task the constitution placed before itself was ‘the individualization of identity’ -which was the precondition of a successful operation of a liberal constitutional order. The ‘destiny’ of the citizen was to become himself, a destiny blocked by structures of caste, and pressure of dominant groups and interests. Khosla explains carefully and clearly how the reservations based on caste were to remove obstacles on the way of people from lower orders ‘becoming individuals’. This subtle, but crucial connection between the imaginary of individualism and the legal provisions for reservation is rarely explained with such clarity. Khosla is right in claiming that India’s constitutional founding is important, because if democracy is to expand in the world, new attempts at democratic beginnings would face conditions similar to India’s, not to either the present circumstances of Western democracies, or at the time of their origin. They will have to resolve similar historical questions with similar exercises in theoretical deliberation shaping their choices regarding juridical design. Khosla’s remarkably complex, but admirably clear account reveals the historical evolution of ideas, the theoretical elaboration of arguments, and the patient fabrication of juridical procedures which made this remarkable construction possible.

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Notes 1. Uday Singh Mehta, “Constitutionalism.” In Niraja Gopal Jayal and Pratap Bhanu Mehta (eds), The Oxford Companion to Politics in India, OUP, Delhi, 2010. 2. Though the political practice of both Gandhians and Leftists showed that they took liberal juridicality – freedom of speech and association for citizens, and restraints on the state - for granted. 3. John Dunn, Breaking Democracy’s Spell, Yale University Press, New Haven, 2014, quoted in Khosla, 18. 4. Khosla, 19. 5. Ibid, 28. 6. Ibid, 121. 7. Ibid, 142. 8. Ibid, 143.

Disclosure statement No potential conflict of interest was reported by the author(s).

Bibliography Constituent Assembly Debates, 12 vols. New Delhi: Lok Sabha Secretariat, 2009 [1950]. Khosla, Madhav. India’s Founding Moment: The Constitution of a Most Surprising Democracy. Cambridge, MA: Harvard University Press, 2020. Mehta, Uday Singh. “Constitutionalism.” In The Oxford Companion to Politics in India, edited by Niraja Gopal Jayal and Pratap Bhanu Mehta, 15–27. New Delhi: Oxford University Press, 2010.