The constitution as a pedagogical project 9780674980877

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Global Intellectual History

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The constitution as a pedagogical project: three perils (and how India apparently avoided them) Jan-Werner Müller To cite this article: Jan-Werner Müller (2021): The constitution as a pedagogical project: three perils, Global Intellectual History, DOI: 10.1080/23801883.2021.1962583 To link to this article: https://doi.org/10.1080/23801883.2021.1962583

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GLOBAL INTELLECTUAL HISTORY https://doi.org/10.1080/23801883.2021.1962583

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The constitution as a pedagogical project: three perils (and how India apparently avoided them) Jan-Werner Müller for Global Intellectual History Symposium

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 Madhav Khosla’s excellent study invites us to reflect more deeply – in light of the Indian experience – on what, on the very last page of the book, Khosla calls ‘the global unravelling of constitutional democracy’. I want to take up that invitation, risking overly abstract normativism, shameless presentism, and crude comparative constitutionalism (to name just a few of the pitfalls for a someone who is obviously not qualified to make judgments about Indian constitutionalism and its history as such). Before going down this path, I want to highlight two particular merits of Khosla’s volume. First, it makes an important contribution to what one might call the deprovincializing of constitutional theory, which has often only paid perfunctory attention to what Khosla calls ‘the paradigmatic democratic experience of the twentieth century’.1 In his book, a particular struggle for and with constitutionalism is not reduced to a case in large n-studies, but analyzed in its historical complexity, with all due attention to the contingencies which standard political science – overly focussed on quantitative approaches and aiming at law-like generalizations – often simply tends to ignore. Second, the book also helps us to think about what in political theory is nowadays often referred to as ‘non-ideal theorizing’. A vogue for ‘realism’ – a supposed school of thought, polemically opposed to Rawlsian liberals, into which thinkers like Bernard Williams have been drafted posthumously – aim to make political theorists more sensitive to the realities of power.2 But only in theory: debates between self-declared ‘realists’ and supposed idealists have remained at a rather uninteresting and uninspiring metalevel; there are few examples of actually thinking normatively about non-ideal conditions in a systematic way. Khosla’s book is such an example; it carefully analyzes the ways in which what Ambedkar called ‘an Indian soil which is essentially undemocratic’ was cultivated for liberal constitutionalism (in the absence, so Khosla tells us, of any real traditions of liberal political thought); it shows that liberal democracy did not require objective socio-economic preconditions (such as mass literacy: only 12 per cent of the population was literate at the time of the founding); instead, what was needed was a concerted effort to enable CONTACT Jan-Werner Müller NJ 08544, USA

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shared political practices through codified rules, coherent statehood, and forms of representation centered on individuals, as opposed to groups. Participation and communication made democracy work and were in turn furthered by democracy – very much in line with what John Dewey’s pragmatism, to which Ambedkar had turned to for inspiration, had suggested. But participation and communication were in turn facilitated by fundamental political choices about suffrage and representation in particular. In addition, according to Khosla, the constitution was understood as a pedagogical project of sorts; it was not just a rule book, but a political textbook.3 To be sure, the notion of ‘textbook’ suggests rote learning or even more or less mindless imitation – the very things of which the Indian founders were wary. Hence – this is the first of my presentist preoccupations – I want to ask under which conditions it is desirable to use a constitution as a pedagogical tool and under which it might not be. On one level, all constitutions intimate a constitutional morality (to use Grote’s term, which Ambedkar picked up, and which in turn informs Khosla’ study); all reflection on a constitution’s basic structure will teach something about underlying normative commitments (and a country’s political identity).4 But not all constitutions contain lengthy, more or less symbolic declarations about a state’s national identity (though some, like the Irish and the Polish ones, certainly do); and not all have detailed policy prescriptions serving, among other things, an educative purpose. In fact, there are three distinct perils associated with the constitution as a collectively binding teaching tool: The first is what the distinguished German jurist Dieter Grimm has called ‘exclusive constitutionalism’.5 Here one political party (or other highly particular group) formulates a constitution, without involving other parties or other groups in society at large; what’s worse, it includes highly particular understandings of the nation in a preamble or in other specific constitutional provisions. In effect, a set of deeply partisan actors claims that they, and only they, really represent the people (not as any kind of empirical entity, but more like an ideal of the nation, or something like a transhistorical essence). A particular symbolic understanding of the people is then codified, potentially excluding rival constructions of peoplehood and perhaps even legally disabling the very possibility of contesting a particular notion of the people. Here the constitution becomes a sort of populist-identitarian project.6 A recent example is the 2012 Hungarian constitution, in the formulation of which only the ruling party participated, and in whose preamble a highly particular understanding of the nation as Christian was cemented (with far-reaching implications for family and anti-discrimination law in particular).7 The second danger of making a constitution into a textbook is that very particular policy choices – which are so particular that they actually ought to be subject to dayto-day democratic contestation – are taken out of ordinary politics. As a result, parliaments are weakened; potentially, courts might in their stead be empowered to legislate. Yet again, the 2012 Hungarian constitution – with its extremely specific provisions for fiscal policy – is an example, but arguably, so is the European Union. Its treaties – which can be understood as a quasi-constitution – provide not just an arena for policy choices (what Michael Oakeshott famously called a civil association): rather, the treaties prescribe a very particular market-making programme, a teleology (towards ever deeper economic and political union) which is systematically reinforced by the European Court

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of Justice. The latter understands itself less as a neutral arbiter and more as a judiciary with a mission (namely, deepening European integration). It does not so much regulate a civil association but drive forward what Oakeshott called an enterprise association (whose teleology drafts members of the association into advancing a particular collective project).8 The third peril has to do with the constitution turning from a pedagogical project into what one might bluntly call a kind of PR exercise. The EU can yet again serve as an example. The ill-fated (and already almost forgotten) constitutional treaty was, at the beginning of the new millennium, presented by European elites as a means of bringing people somehow ‘closer’ to the Union.9 Symbolic gestures about flags and anthems raised the stakes – it seemed, especially in the eyes of critics, like a state was being built; it also appeared as if the treaty was a kind of final settlement in which some were going to be winners and some were going to be permanent losers. In the end, these elites got the worst of both worlds: the constitutional treaty elicited neither a new love or deepened loyalty for the Union; instead, it galvanized opposition. The latter was hardly homogeneous: some objected to the treaty because they disliked the whole idea of European integration beyond a common market; others felt that the treaty simply removed neoliberal policies from contestation. As a result, the idea of the constitution not so much as textbook than as marketing brochure failed disastrously.10 These, then, are three pitfalls of the constitution as a pedagogical project of sorts. Khosla’s book, among other things, shows how India avoided them. It did not fall into the identitarian trap because it concentrated on state-building, rather than settling more or less symbolic questions of national identity, with possibly exclusionary consequences. The founders opted for a strategy of incremental constitution-building and engaged in ‘studied ambiguity’, in conjunction with provisions to amend the constitution rather easily11; rather than positing a particular understanding of the people as final; in particular, they avoided the understanding of the polity as a ‘Hindu Pakistan’, in Nehru’s words. The constitution became a device to enable pluralism (including cultural pluralism: Nehru promoted the notion of a ‘composite culture, but not, as Khosla makes clear in his chapter on the location of power, a Gandhi-inspired ‘political pluralism’ understood as weak and dispersed authority).12 Pratap Mehta has gone so far as to call it a ‘charter of liberation’.13 It also facilitated a principled openness of the political system – even if it was de facto formulated by a single, albeit extremely heterogeneous, party (and hence could, on the face of it, appear to be the result of Grimm’s ‘exclusive’ or partisan constitutionalism). Of course, this very achievement is today in danger: Modi’s far-right populist BJP is advancing a specific understanding of Hinduism as the ‘real India;’ less obviously, it is also weaponizing a particular understanding of secularism in order to signal that Muslims are at best second-class citizens, or perhaps don’t truly belong to the people at all.14 And, like all far-right populists, it is also denying the legitimacy of their political opponents, calling explicitly for a Congress-free India (Congress mukt Bharat). Second, while the constitution clearly outlined a programme of social transformation (and even declared the country to be a ‘sovereign socialist secular democratic republic’), the Directive Principles were non-justiciable. They were also vague enough to leave plenty of leeway for political contestation and, less obviously, for the Supreme Court to react flexibly (or, as Pratap Mehta puts it, ‘promiscuously’) to changing conditions,

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and advance social rights more or less assertively.15 While the founders decisively made the three constitutionalist core commitments Khosla identifies in the book – codification of a particular democratic morality, centralized state power, and individualist representation – they also adopted what Hanna Lerner identifies as particular incrementalist strategies: deferring particularly controversial issues, outlining vague rules concerning personal law, and opting for non-justiciable provisions. As Ambedkar put it: [W]e have deliberately introduced in the language that we have used in the Directive Principles something which is not fixed or rigid … It is no use giving a fixed, rigid form to something which is not rigid, which is fundamentally changing and must, having regard to the circumstances of the time, keep on changing. It is therefore, no use saying that the directive principles have no value. In my judgment, the directive principles have a great value, for they lay down that our ideal is economic democracy.16

He also explained that the Constitution ‘only provides a machinery for the government of the country. It is not a contrivance to install any particular party in power’.17 Again, it matters that the constitution can be amended easily; no programme is cemented in a way comparable to the Hungarian and EU examples mentioned earlier. At the same time, it would be wrong to think of incremetalism as a panacea for democracies characterized by deep divisions; it is a strategy whose success of course depends a great deal on context: it is not unreasonable to think that, in the Weimar Republic, unresolved questions and their fierce contestation – from relations between capital and labour to the federal make-up of the polity – contributed to the demise of democracy.18 Third, the Indian constitution was in the end not a top-down political PR-project, but instead became available to what Rohit De has called citizen-litigants.19 Interestingly, attempts to push back against the BJP’s populist-identitarian politics have extensively drawn on the constitution – not just as a legal document, but as a strong symbol in popular culture: the preamble was read at protests against the new citizen register (which, in combination with the new refugee regulations, sends a clear signal that Muslims are second-rate citizens in India); recordings were shared on Twitter, YouTube, and TikTok (even if ‘TikToking the constitution’ has been of no avail, or so it seems at the time of writing).20 Yet the happy conclusion that an understanding of the constitution does not pre-empt a democratic politics is perhaps also a little too quick. After all, reflections on what Khosla calls ‘global unravelling’ would be rather incomplete if one simply ignored today’s transformation of the world’s largest democracy by a far-right politest party. And, more to the point, it seems that the BJP’s transformation of India – with the evident goal of a Hindu Rashtra – has been advanced alongside, rather through or, for that matter, squarely against the constitution.21 This scenario contrasts markedly with the track record of other authoritarian populists in power, who either were able to pass entirely new constitutions (Hungary, Venezuela) or so blatantly violate the constitution or brutally capture constitutional courts that critics have an obvious focal point in order to push back in the name of liberal democracy (Poland being the most obvious example). The BJP’s strategy has been based on clear-enough messages of Hindu nationalism from the top – often resulting in what the philosopher Kate Mann has called ‘trickledown aggression’ – combined with bottom-up violence by cow defenders which is not necessarily endorsed by Modi, but also never unambiguously disavowed.22 The combination of the citizenship register – ostensibly aimed at identifying ‘illegal migrants, or

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as, Amit Shah put it, ‘infiltrators’ who are like ‘termites in the soil of Bengal’ – and the new refugee provisions which conspicuously leave out Muslims is an expression – albeit not a constitutional one – of an understanding of India which breaks with that of the founders.23 A majority is essentially instructed to feel and act like a minority of perpetual victims – even though they are in fact the proper ‘sons of the soil’, as Savarkar defined Hindus.24 Such a community of self-declared victims is held together by shared sentiments of outrage and indignation (with Hindutva effectively sidelining issues of caste and therefore also part of the Ambedkar pedagogy contained in the constitution).25 Add to that the profound changes to Indian federalism (in particular the change of the status of Jammu and Kashmir) as well as changes to party financing, especially the introduction of electoral bonds that massively benefited the BJP26 – and add to all that the fact that in the Hindutva decisions the Supreme Court failed to block far-right Hindu nationalism as an electoral strategy27 – and one can see how a vision profoundly different from the constitutionalism prevalent of 1950 or so can be implemented without official constitutional amendments.28 I don’t claim to explain the success of this strategy combining bigotry and business, as Kapil Komireddi has put it29, except that I want to point to one last possible broader lesson: constitutions always interact with a party system30; and the objects of a constitution’s pedagogical project is not just citizens at large, but also more particularly intermediary powers – parties in particular – which obviously engage in political contests, but ideally also affirm what John Rawls once referred to as ‘constitutional essentials’ during ordinary political struggle. The Indian constitution – at a time when many other democracies included specific provisions on parties – remained silent on them.31 The anti-defection amendment gave them clearer constitutional status; parties ceased to be the ‘orphans’ of constitutional law.32 But at the same time, the amendment dealt a serious blow to any ideals of internal party democracy (those politicians who do not toe the line lose their seat – a provision that flies in the face of the notion that members of representative assemblies should ultimately rely on their own judgment, as well as the idea that a proper understanding of partisanship includes the idea of an internal loyal opposition).33 This anti-pluralist provision caused neither Congress turning into a dynasty nor the fact that, under Modi, the BJP has become much less democratic internally and is instead devoting itself to a tech-savvy cult of personality which has few, if any parallels, elsewhere in the world. But, compared to constitutions which try to foster democracy more broadly also by ensuring that political parties live up to basic democratic principles, India’s founding document is characterized by a lamentable lacuna. This is not to take away from the achievement of the founders of what Khosla calls a ‘most surprising democracy’. But it suggests that we must also pay close attention to the space of ordinary politics between basic constitutional commitments and a political culture more or less favourable to liberal democracy. Let me sum up my brief reflections: Khosla’s richly contextualized history of India’s founding moment illuminates a crucial, though ruefully neglected chapter of twentieth-century legal and political thinking. But Khosla’s equally strong conceptual framing – along the axes of codification, centralization, and a notion of representation based on the individualization of identity – also point to important lessons for constitutional theorists. This is especially the case for jurists and political theorists grappling

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with the conflicting demands of individualist representation, resulting in free agency, one the one hand and ‘communalism’ and localism, based on supposedly pre-defined group theorists, on the other. Khosla’s account also rightly celebrates democracy’s ability to bootstrap itself into existence; actual practices that became self-sustaining and turned subjects into citizens were more important than supposedly objective pre-conditions; or, as he puts the point, ‘over time, the relationship between political ideology and political development is likely to emerge as a mutually constitutive one, for … politics has the potential to produce its own brand of essentialism’ (with all the positive and negative consequences this implies).34 Leaving space for politics is a virtue in a constitution; the fact that the Indian one managed to do so – despite also being a pedagogical instrument – is truly remarkable, not least in the face of various communalist pressures. But it is also appears insufficient as a safeguard against a novel, though in many way also quite old, form of politics – highly exclusionary ethnic nationalism – that changes the fundamentals of the polity without foundational acts such as constitutional amendments. It is an open question to what extent anti-democratic practices – even ones that facially can be justified with normative notions such as secularism – might end up de fact changing constitutional morality without officially changing the constitution. Jan-Werner Müller is Roger Williams Straus Professor of Social Sciences at Princeton. His publications include Contesting Democracy: Political Ideas in TwentiethCentury Europe (New Haven: Yale UP, 2011) and Democracy Rules (London: Penguin, 2021).

Notes 1. Madhav Khosla, India’s Founding Moment: The Constitution of a Most Surprising Democracy (Cambridge, Mass.: Harvard UP, 2020), 6. 2. Raymond Geuss, Philosophy and Real Politics (Princeton: Princeton UP, 2008) and countless others. An effective critique is provided in Mark Philp, “Realism without Illusions,” in: Political Theory, vol. 40 (2012), 629–49. 3. Khosla, India’s Founding Moment, 156. 4. Never mind whether these commitments are honored; even “sham constitutions” tell us something meaningful. See David S. Law and Mila Versteeg, “Sham Constitutions,” in: California Law Review, vol. 101 (2013), 863-952. See also Gary J. Jacobsohn, Constitutional Identity (Cambridge, Mass.: Harvard UP, 2010) 5. Dieter Grimm, “Types of Constitutions”, in: Michel Rosenfeld and András Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law (New York: Oxford UP, 2012), 98132. 6. For this particular understanding of populism – a claim to a monopoly of representing the “real people” and hence the practice of a form of exclusionary identity politics – see my What is Populism? (London: Penguin, 2017). 7. Renáta Uitz, ‘Can you tell when an illiberal democracy is in the making? An appeal to comparative constitutional scholarship from Hungary’, in: International Journal of Constitutional Law, vol. 13 (2015), 279-300; here 286. On the new Hungarian constitution, see also the special section on Hungary’s illiberal turn in the Journal of Democracy, vol. 23 (2012) and the collection edited by Gábor Attila Tóth, Constitution for a Disunited Nation: On Hungary’s 2011 Fundamental Law (Budapest: CEU Press, 2012). 8. Michael Oakeshott, On Human Conduct (Oxford: Oxford UP, 1975)

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9. For an extended analysis, see my “Our Philadelphia? Understanding the (Apparent) Failure of the European Constitution,“ in: Journal of Modern European History, special issue on “European Constitutions, Civility, and Violence (18th century to the present)”, eds. José Harris and Robert Gerwarth, vol. 6 (2008), 137-53. 10. Of course, all the non-symbolic elements of the “constitution” became treaty-law anyway; after a decent interval, during which European leaders were supposedly “listening,” the Lisbon treaty codified the core parts of the constitution. 11. Of course, the amendment process is constrained by the basic structure. An analogous case might be the post-war West German constitution (also planted on soil that plenty of observers considered “essentially undemocratic”): the Basic Law has been amended numerous times, but the amendment process is constrained by the “eternity clause” which declares democracy, basic rights, and federalism unchangeable. 12. Christophe Jaffrelot, “Toward a Hindu State?”, in: Journal of Democracy, vol. 28 (2017), 52–63. 13. Pratap Bhanu Mehta, “The Charter of Liberation,” in: Indian Express (29 December 2019), at: https://indianexpress.com/article/books-and-literature/the-charter-of-liberationpreamble-to-constitution-of-india-6189346/ 14. For the weaponization of secularism and a supposedly “thin” political identity for exclusionary purposes, see the excellent analysis by Cécile Laborde in “Minimal Secularism: Lessons for, and from India,” in: American Political Science Review, forthcoming (First View 2020 at: https://www.cambridge.org/core/journals/american-political-science-review/article/abs/ minimal-secularism-lessons-for-and-from-india/ 5D3F413883FEEE9EA16768395D1BACFD). As Laborde puts it: “Despite its appeals to the rhetoric of formal equality, Hindu nationalism makes no pretense to promote equal inclusion. Its branch of nationalism explicitly excludes form its midst those who do not belong to the Hindu majority – Muslims and Christians primarily. Today India is fast becoming an ethno-democracy … ”. 15. Hanna Lerner, “The Indian Founding: a comparative perspective,” in: Sujit Choudry, Madhav Khosla, and Pratap Bhanu Mehta (eds.), The Oxford Handbook of the Indian Constitution (Oxford: Oxford UP, 2016), at: . Pratap Bhanu Mehta, “The Indian Supreme Court and the Art of Democratic Positioning,” in Mark Tushnet and Madhav Khosla (eds.), Unstable Constitutionalism: Law and Politics in South Asia (New York: Cambridge University Press, 2015), 233–60; here 233. 16. Quoted in Lerner, “The Indian Founding”. 17. Quoted in Khosla, India’s Founding Moment, 51. 18. Carl Schmitt, in his constitutional theory, coined the concept of dilatorischer Formelkompromiss for what he regarded as the tendency to paper over unresolved fundamental questions. 19. Rohit De, A People’s Constitution (Princeton : Princeton UP, 2018). 20. Adom Getachew, “Living Constitutions,” in: Dissent (Fall 2020), at: https://www. dissentmagazine.org/article/living-constitutions. 21. With the exception of the attempt to amend the constitution after the 2014 election in order to the appoint a national judicial commission – an attempt that was declared unconstitutional. 22. Kate Manne, “The Logic of Misogyny,” at: http://bostonreview.net/forum/kate-mannelogic-misogyny 23. The message finds many expressions, of course. As Christophe Jaffrelot and Louise Tillin point out, after 2014, for the first time, a ruling party in India did not have a single Muslim MP. See “Populism in India,” in: The Oxford Handbook of Populism, eds. Cristóbal Rovira Kaltwasser, Paul Taggart, Paulina Ochoa Espejo and Pierre Ostiguy (Oxford: Oxford UP, 2017) 24. For the development of Savarkar’s orientation towards “sacred land,” see also Vikram Visana, “Savarkar before Hindutva: Sovereignty, Republicanism, and Populism in India, c. 1900–1920,” in: Modern Intellectual History (2020), as well as Khosla, India’s Founding Moment, 125–30.

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25. “Hindu nationalism and the ‘saffronisation of the public sphere’: an interview with Christophe Jaffrelot”, in: Contemporary South Asia, vol. 26 (2018), 468–82. One could argue that the Sangh Parivar has long offered a counter-constitutional pedagogical project. 26. Christope Jaffrelot and Gilles Verniers, “The BJP’s 2019 election campaign: not business as usual,” in: Contemporary South Asia, vol. 28 (2020), 155–77. 27. In 1995, the Supreme Court declared Hindutva a matter of ethos or way of life – hence its invocation could not be considered a corrupt practice during elections when references to religion are banned, according to the 1951 Representation of the People Act. 28. Manoj Mate, “Constitutional Erosion and the Challenge to Secular Democracy in India,” in: Constitutional Democracy in Crisis?, eds. Mark A. Graeber, Sanford Levinson, and Mark Tushnet (New York: Oxford UP, 2018), 377–94, Madhav Khosla and Milan Vaishnav, ”The Three Faces of the Indian State”, Journal of Democracy, vol. 32 (2021), 111-125, and Julius Maximilian Rogenhofer and Ayala Panievsky, “Antidemocratic populism in power: comparing Erdoğan’s Turkey with Modi’s India and Netanyahu’s Israel,” in: Democratization, vol. 27 (2020), 1394–1412. 29. Kapil Komireddi, Malevolent Republic: A Short History of the New India (London: Hurst, 2019), 102. 30. I am indebted to Kim Lane Scheppele on this point. 31. Ingrid van Biezen, “Constitutionalizing Party Democracy,” in: British Journal of Political Science, vol. 42 (2012), 187–212. As Van Biezen points out, only in three European countries (plus the UK, for obvious reasons) do parties receive no mention in the constitution: Denmark, Ireland and the Netherlands. The earliest constitutionalization occurred in Iceland in 1944, followed by Austria in 1945, then Italy, and then Germany. 32. Aradhya Sethia, “Where’s the Party? Towards a constitutional biography of political parties,” Indian Law Review, 3 (2019), 1–32, and M. R. Madhavan, “Legislature: composition, qualifications, and disqualifications,” in: The Oxford Handbook of the Indian Constitution, eds. Sujit Choudhry et al. 33. On understandings of partisanship that emphasize the difference with something like blind loyalty, see Russ Muirhead “The Case for Party Loyalty,” in: Sanford Levinson et al. (eds.), Loyalty (New York: New York UP, 2013), 229–56, as well as Jonathan White and Lea Ypi, The Meaning of Partisanship (New York: Oxford UP, 2016). 34. Khosla, India’s Founding Moment, 160.

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