The possibility of modern india

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Global Intellectual History

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The possibility of modern India Madhav Khosla To cite this article: Madhav Khosla (2021): The possibility of modern India, Global Intellectual History, DOI: 10.1080/23801883.2021.1962582 To link to this article: https://doi.org/10.1080/23801883.2021.1962582

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GLOBAL INTELLECTUAL HISTORY https://doi.org/10.1080/23801883.2021.1962582

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The possibility of modern India Madhav Khosla Law School, Columbia University, US

The history of modern constitutionalism has immortalized several events of much moment. It has, however, cast scant attention upon a great deal other episodes that merit greater engagement. Among this latter category is the making of modern India – the crafting of the constitutional text that would create the world’s largest democracy. The Indian case invites attention not merely because of its size but rather because of its conditions. This postcolonial experiment involved the coming together of democratization and constitution-making in a setting that was poor, uneducated, and divided, and one that was stepped in centuries of tradition. Unlike in the West where voting rights were expanded gradually in settings that witnessed the spread of wealth and literacy and the cementing of administrative institutions, India reversed the historically ordained process to self-rule. For India’s founders, democratic citizens were to be created through democratic practice. There were three key features of India’s founding framework. The first was a commitment to legal rules and codification, devices that could create a new vocabulary and place citizens and state actors within a new orbit of understanding. The second was the creation of a centralized state that could counteract social forces, unify authority, and be a vehicle for modernity. The third was a model of representation that was unmediated by community. The individualization of identity held the promise of allowing preferences to be forged within the crucible of politics, on the basis of the exercise of agency on behalf of the persons involved. Each of these three elements would allow Indians to move beyond prior forms of knowledge and practice, and enable them to become democratic citizens. Through these three features, India’s founders provided a conceptual answer to the colonial argument against self-rule; they suggested that a politics could itself enable a certain kind of politics.1 This answer makes the Indian story, as I try to show in India’s Founding Moment, crucial to the history of democracy.2 Not everyone is convinced. Faisal Devji’s spirited essay calls into question the radicalness of the Indian founding. Indeed, upon reading his contribution, one wonders whether it is fitting to describe the birth of modern India as a founding at all. It seems far more appropriate, on his account, to regard it as a continuation of the old colonial order rather than as the inauguration of a new free society. Devji’s argument belongs, in one form or another, to a long history of similar arguments that question the Indian founding. On this account, India’s faux founding is part of a larger historical narrative with few ruptures. The state was a site of power and abuse prior to India’s independence and it has been equally so in its post-colonial avatar. Seen through such a CONTACT Madhav Khosla

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lens, India’s postcolonial constitutional moment is not only no different from its colonial past and contemporary present; it is also no different from the life and journey of Pakistan.3 Devji’s argument is powerful, but it rests on two errors. First, it seems to assume that merely because the Indian nation-state is guilty of committing all kinds of injustices – as it surely is – there is little difference that one might draw between this state and the prior colonial regime. As both entities rest on the use of coercion, which has often been deployed in excessive and objectionable ways, it follows that there is not very much which separates them. The mistake here lies in the unstated premise that the only yardstick for assessing the legitimacy of authority is its use. Now, to be sure, the manner in which authority is exercised is doubtless relevant to our evaluation of it. But it is not the only metric that counts. Indeed, there are two separate issues that are crucial, as scholars of constitutional democracy have long emphasized.4 There is the question of the source of authority and the question of the use of authority. The former is not sufficient for a free society – as the contemporary rise of elected authoritarian governments reminds us – but it is necessary for one.5 What marks the move away from colonialism to self-rule is a change in the source of authority – the state is legitimized by the fact that it rests on the consent of the governed. It is undoubtedly the case that it is only partly legitimized by this fact. Simply because the state is brought into being through the articulation of preferences and the expression of collective will does not mean that every action that it performs is legitimate. But India’s founders never made such a suggestion.6 As constitutional democrats, how could they? It is strange that Devji places no emphasis at all on how the authority of the state comes into being, and places all the burden of legitimacy on how the state acts. His discussion of certain inherited features of the colonial legal order is both flawed because it underplays new legal features like fundamental rights, and beside the point because – unless his concern is with the idea of the nation-state and the concept of coercion per se – we surely cannot understand legal orders without a sense of the source of their authority. On occasion, Devji’s essay does indeed read like a critique of the nation-state per se. The birth of Bangladesh in 1971, Devji suggests, marks the end of the logic of the post-colonial state. Its freedom was, after all, not achieved by a transfer of power from an imperial power but rather by civil war involving a post-colonial state. But, read differently, the birth of Bangladesh exemplified the logic of the post-colonial state: that it is only within the framework of a nation-state that freedom can be found; that all other attempts, all other permutations, fail, as they did in the mid-twentieth century. Ironically enough, the exclusive emphasis on outcomes makes it seem like Devji’s concern with the colonial state is not that its rule was imposed on the people, but that it was poorly run. In that respect, the argument appears to be one for a better empire rather than for self-rule. Devji’s second error follows in an interesting way from the first. He attends to what he conceives of as a tension between the political and social domains, and claims that the Indian founding privileged the former over the latter.7 On his account, Muslims were excluded and marginalized, a fact exemplified by the end of separate electorates and weightage, forms of representation to which they had been entitled during the last few decades of colonial rule. The privileging of individual over communitarian politics was driven, he observes, by some a kind of fear about national integration. What this meant for Muslims is that they lost their identity and

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their place. The ‘social’, that is to say, was left in a dark corner, and all light was only cast upon the ‘political’. For Devji, India’s founders were, simply put, conversative figures who refused to address the concerns of India’s social domain. Underlying this argument is a similar inattention to the concept of authority. The key reason behind the approach to non-communal representation, as I capture in India’s Founding Moment, was the importance given to individual agency. Because Devji is unfocused on how the state comes about, this particular concern drops out of his analysis. But the exercise of agency is precisely what democratic politics is about – it is the very reason why we give people the right to vote.8 Devji’s failure relates to seeing groups as permanent majorities and minorities. The move away from communal representation was based on the conceptual claim that democratic politics was a domain where free individuals could express preferences, and to take such individuals as free would be to allow the very categories of majority and minority to be undefined and temporary, changing from one election to the next. To deny this would be to submit to preset preferences that exist outside the domain of democratic politics, a submission that may have made sense during colonial rule when persons were seen as having no agency, but it could make little sense in a world where agency exists. Devji does fully grasp that the very meaning of a particular identity changes under the conditions of democratic politics. In other words, he submits to the anti-political stance that one must superimpose one form of sociological identification, that is seen as final and permanent, upon the domain of the political, which is meant to be ever-changing. To blur this distinction is to conflate, as Sudipta Kaviraj notes in his essay, decisional majorities with identity majorities.9 As I tried to underline in India’s Founding Moment, the Partition of British India revealed the challenges in creating a stable representative model centered on identity. Devji laments the absence of separate electorates, weightage, and the like in India’s constitutional text. But, if one studies his call for such measures, it is not quite clear how they solve the problem at hand. If the special recognition of the Muslim community corresponds to their size, then it is not quite clear how this can prevent the action of a Hindu majority as the special recognition toward Muslims will not change the fact that they are a minority. How will such proposals prevent voting against them? And if the special recognition is meant to be of a kind that their voting power exceeds their size, then it is not clear how such a proposal can be justified in terms of treating people equally, to say nothing about why it would be palatable to the numerical majority whose voting influence is now decreased. In genuine democratic politics, this is not a real dilemma because categories of majority and minority are not fixed – there is no pre-existing Hindu majority that will always vote en bloc against a pre-existing Muslim minority. But I want to stress is that even if one accepts this somewhat essentialist sociological vision, it is unclear how a framework where representation is mediated by community provides a solution. Attention to this dynamic allows us to notice why Partition might have occurred. Whether or not Mohammad Ali Jinnah desired British India to be split into two separate nation-states, the territorializing of his argument was internal to its very structure.10 The division of territory rested on the perverse idea that, as Sudipta Kaviraj has noted elsewhere, ‘minorities can secure themselves only in a state of their own, that is, only if they have turned themselves into a majority’.11 Within a single territory, a focus on

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identity cannot not solve the dilemma of representation.12 Indeed, if special electorates or weightage were the answer, then why did British India split into two nation-states? The only solution, India’s founders realized, would be to sever both matters from one another – to construct a model of representation that was truer to the nature of democratic politics than to the cleavages that marked Indian society. This is not a betrayal toward the Muslim community, as Devji sees it, but rather a call for politics to be performed on different terms. To believe that Indians cannot perform politics on different terms is to see them in the same way as the imperialists did, or as the Hindu nationalists are presently doing. That is to say, it is to see them as permanently hostage to certain essential features of their being that are immune to being changed by politics. The individualization of identity was a tricky issue, in part because the constitutional schema does adopt a somewhat different approach to caste. In India’s Founding Moment, I try to unpack the philosophical reasons that drove this differential treatment. While India’s Constitution ended all forms of identification on the basis of religion, it did permit certain forms of preferential treatment for particular members of lower caste groups. Whereas in the case of religion, the attempt was to permit religious freedom for all groups within the limitations necessary for the construction of a modern state, the goal in the case of caste was the end of a horrendous social institution. Put differently, the religion question was seen through the lens of the public-private distinction. The question was how to create a representative framework where religious freedom could exist in one’s private life alongside a conception of equal citizenship in the public realm. In the case of caste, however, the goal was, in B. R. Ambedkar’s famous phraseology, annihilation. In his provocative essay, Mahmood Mamdani problematizes the distinction between caste and religion. He raises the question of whether the constitutional schema, instead of empowering individuals – as India’s Founding Moment claims – merely displaced religion with caste as the central organizing principle. In this way, Mamdani asks, did the Constitution turn from one kind of communal representative model to another? Did it, in the process, empower the Hindu community? The key difference between communal representation organized around religion and caste would, after all, be the absence of any protection toward Muslims in the latter schema. And, seen through such a lens, can we make some sense of India’s contemporary political situation – its descent into a Hindu nation-state – through the divergent approach taken toward caste and religion at India’s founding? I can see the force of such an argument, though I think that there are two things that might be said in response to it. The first is that India’s Founding Moment did not, I hope, pay insufficient attention to this question. Part of the reason why I spilt much ink on exploring the logic behind the founding approach to religion and caste is precisely because I do not think that the latter involved a kind of community-based representative framework. This is because the problem that caste presented was a problem that was fundamentally different to that offered by religion, a matter to which I think Mamdani devotes far too little consideration. Whereas the attempt at negotiating the question of religion was driven by an attempt to create a constitutional schema that could protect different faiths and acknowledge the principles of self-rule, the attempt at addressing the caste conundrum was motivated by a desire that Indian society transcend caste as a means of identification. The latter was, much like the former, focused on the

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individualization of identity. The question was how one can liberate the individual from the chains of specific caste groups, and thereby bring about an end to the caste system. The second thing that one might say is that part of why Mamdani’s argument has force is that, while it does not quite engage with the arguments that shaped India’s founding, it does capture something striking about contemporary Indian politics. Even though the recognition toward caste was supposed to be temporary, and such recognition was meant to be structured in very careful ways and through very careful rules, on matters ranging from beneficiary identification to the domains where preferential treatment should apply, the logic behind caste-based preferential treatment has taken on a life of its own in India’s postcolonial journey. As Mamdani is correct to note, it has engendered all kinds of political mobilization based on caste, and caste has become the central and exclusive identity around which the politics of social justice, equality, and discrimination is performed in India today. We have moved from a system that was meant to end caste to one where power is shared between different caste groups.13 The individual has dropped out of this equation, alongside mobilization on other grounds such as religion. Mamdani is undoubtedly right in urging us to think more carefully about this contemporary fact. But whether this contemporary fact can be linked to the original constitutional settlement – and how it can be so linked – is a far more complex question, and one that merits an entirely different kind of study. What can be said, as India’s Founding Moment makes clear, is that the present picture does not represent the original constitutional vision. The distance between the founding vision and the present political reality extends, of course, far beyond this one aspect. Indeed, the principles on which modern India was built have probably never been as weakened as they are today.14 In approaching the present moment, let us recall one of the major themes in India’s Founding Moment, namely how the constitutional apparatus could serve a pedagogical function. The making of India’s Constitution marked a critique of an earlier imperial language of pedagogy. The founders certainly believed that Indians needed, as it were, to be educated, but felt that their colonial masters had been mistaken about the path to education. The answer did not lie in submission to foreign authoritarian rule. Instead, it lay in the participation in a self-sustaining political environment. It was the practice of democracy that would make Indians democratic citizens. I owe a real debt to Jan-Werner Müller in urging us to think more deeply about when and how a constitution might be a pedagogical tool. In particular, Müller points to three concerns that might arise in using a constitution in such a manner. First, the founders could adopt a hegemonic, singular conception of the people and the nation, and use the constitution to impose that conception. Second, a constitution might constitutionalize particular policy choices that ideally belong to the realm of ordinary politics, and thereby substitute rather than enable democratic rule. Finally, the pedagogical enterprise might become a kind of marketing carnival, as seen in the European Union, where slogans override substance, and we are left with a political kerfuffle rather than a constitutional moment. Each of these concerns is valid. The concerns demonstrate that one cannot study the act of codification in and of itself – we must attend carefully to the substance of what is being inserted into a constitutional text. One way in which India’s Constitution was substantive but allowed for politics was through the non-justiciable Directive Principles of

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State Policy. As Müller rightly observes, these provisions capture how a constitutional text can address matters without taking them outside the realm of political contestation. Importantly, they also reveal how a constitution can speak to many different audiences – both state actors and citizens – and how it can embrace various forms of accountability – from being answerable in court to being answerable at the ballot box. To take the Indian constitutional project seriously is to consider the ways in which it conceived of the meaning of citizenship in a constitutional democracy. What is striking about India’s founding document is the effort at creating common meaning and shared practices. In constitutional theory, the case is often made for an open-ended constitutional settlement, one that can bring more people into the conversation and reduce conflict over controversial choices.15 In the Indian case, however, there was a sense that even such open-endedness can only take place with some background consensus over the meaning of constitutional democracy. In the absence of such meaning, the constitutional text could play a crucial constitutive role. It is doubtless true that the substance of the constitutional text had a particular ideological conception. It had a certain conception of legitimate authority and it had a certain conception of the state. As I put it, ‘codification was used to explicate what constitutionalism within a democratic society meant’.16 A different political regime would have codified a very different constitutional text. In populist governments today, for instance – a matter on which Müller has written with such care – we can see not only a new mode of doing politics but also the construction of new legal architectures.17 The Indian story is, in other words, not only a story of a pedagogical constitutional project, but one aimed at the creation of something particular, namely a certain kind of democratic citizen. We notice two very different things occurring in India today. On the one hand, we notice the rise of an unregulated non-legal domain, perhaps above all exemplified by presence of extra-legal violence.18 On the other hand, we notice tangible and formal legal changes, often at the statutory and executive rather than constitutional level, but nonetheless changes that alter the overall legal architecture in place.19 This reminds us that there is something profoundly radical – rather than conversative – about India’s present regime.20 It aims to create an entirely new state, through both legal and extralegal means. Like India’s founders, those who currently hold power in India are also interested in rewiring the Indian people, but they are interested in rewiring them through different means and toward a different end. To return to Müller’s point, what is special about India’s constitutional text is not merely that it was a pedagogical document, but that it was meant to bring about a very specific kind of education. Attention to this matter forces to think carefully about the ways in which constitutional texts can inform and teach those whom they constitute, and which lessons are the ones that we should desire. How will the current crisis of constitutional democracy in India unfold? The present situation, both in India and elsewhere, has made one wonder whether, as Sudipta Kaviraj thoughtfully asks, a constitution might be able to defend itself.21 In exploring this question, I am grateful to Lucia Rubinelli for her careful reminder us that any democratic project will require a great deal more than the formal institutional structure under which it operates. Her argument seems to be to be quite right. In India’s Founding Moment, I offered an account of the new formal constitutional order that India’s founders adopted to reorder the people. But I did not, I hope, imply that such an order was

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self-executing. It is plainly the case that institutions can bring about profound changes in how people behave, but it is equally true that the situations under which institutions can have such an impact are few and far between. What such change requires, in part, is some kind of external commitment – at the very least on behalf of the political elite – to commit to the overall institutional project. Rubinelli is quite right that the success of a constitutional order rests on the role played by a range of actors, including political leaders, on the nature of popular support, and on the presence of mass appeal. It also depends on different forms of participation across society as well as on real practices and actions that at once create and shape norms. This is not the occasion to venture suppositions about the reasons behind constitutional endurance and constitutional failure in India, though this has spawned considerable literature.22 Suffice it to note that the turn to the present crisis, in the invaluable essays by Müller, Kaviraj, and Rubinelli, reminds us of the unavoidability of politics. The future of modern India will depend on whether it can recover a certain kind of political imagination, and generate a new political vision. This future will turn on specific ways in which politics is organized – as Müller highlights, the role of political parties will loom large – as well as on ideas and ideologies that acquire force. In the ultimate analysis, it is politics that made modern India possible, and it is only politics that can rescue it. The power of politics is precisely that it can create and recreate our world, and that, as I observed in India’s Founding Moment, it can bring about its own form of essentialism. India’s Constitution is unlikely to be able to save Indian democracy, but Indian democracy may well save the nation’s Constitution.

Notes 1. On the arguments for empire, see Mehta, Liberalism and Empire; Pitts, A Turn to Empire; Mantena, Alibis of Empire. 2. Madhav Khosla, India’s Founding Moment. 3. For a classic contribution in this literature, see Jalal, Democracy and Authoritarianism in South Asia. 4. For a recent valuable discussion on this point, see Gardner, “The Contractualisation of Labour Law” 33–47. 5. On elected authoritarians in our times, see Sadurski, “Constitutional democracy in the time of elected authoritarians”, 6. See Khosla, India’s Founding Moment, at 44–55. 7. The contrast between the political and the social has shaped our sense of constitutional revolutions ever since Arendt’s study of the American and French revolutions. See Arendt, On Revolution. 8. See Tuck, Free Riding 30–62; Tuck, The Sleeping Sovereign 260–262. 9. On majoritarian decision-making, see May, “A Set of Independent Necessary and Sufficient Conditions for Simple Majority Decision”, 20 Sen, Collective Choice and Social Welfare 71–74. 10. See Khosla, India’s Founding Moment, 112–120. 11. Kaviraj, The Enchantment of Democracy and India, 172. 12. See Mehta, “On the Possibility of Religious Pluralism”, 65–88. 13. See Mehta, “The Politics of Social Justice”, 16 ; Sitapati, “Reservations”, 720–741. 14. See Khosla and Vaishnav, “The Three Faces of the Indian State”, 111. 15. See Sunstein, Legal Reasoning and Political Conflict, 2nd ed. 16. Khosla, India’s Founding Moment, 31.

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17. See Scheppele, “Autocratic Legalism”, 545. 18. See Hansen, The Law of Force. 19. A prominent example are recent changes to India’s citizenship laws. See Citizenship (Amendment) Act, 2019; Jayal, “Faith-based Citizenship”. 20. See Kaviraj, “Contradictions of Conservatism”, 1 . 21. I should say that I am overwhelmed by Kaviraj’s many kind words about India’s Founding Moment. As Freud once observed, while it is easy to defend oneself against criticism, being faced with praise often renders oneself defenceless. 22. See Lijphart, “The Puzzle of Indian Democracy”, 258; Varshney, “Why Democracy Survives”, 36 ; Kapur, “Explaining Democratic Durability and Economic Performance”, 28–76. In thinking about the role of political leaders and the commitment to the Indian constitutional project, Jawaharlal Nehru’s contribution is beyond measure. For historical assessments that pay due attention to Nehru’s role, see Khilnani, The Idea of India ; Guha, India after Gandhi.

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

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Mehta, Pratap Bhanu. “On the Possibility of Religious Pluralism.” In Religious Pluralism, Globalization, and World Politics, edited by Thomas Banchoff, 65–88. New York: Oxford University Press, 2008. Mehta, Pratap Bhanu. “The Politics of Social Justice.” Review of Development & Change 16 (2011): 3–21. Pitts, Jennifer. A Turn to Empire: The Rise of Imperial Liberalism in Britain and France. Princeton: Princeton University Press, 2006. Sadurski, Wojciech. “Constitutional Democracy in the Time of Elected Authoritarians.” International Journal of Constitutional Law 18 (2020): 324–333. Scheppele, Kim Lane. “Autocratic Legalism.” University of Chicago Law Review 85 (2018): 545– 583. Sen, Amartya K. Collective Choice and Social Welfare. San Francisco: Holden-Day, 1970. Sitapati, Vinay. “Reservations.” In Oxford Handbook of the Indian Constitution, edited by Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta, 720–741. Oxford: Oxford University Press, 2016. Sunstein, Cass R. Legal Reasoning and Political Conflict. New York: Oxford University Press, 2nd ed., 2018. Tuck, Richard. Free Riding. Cambridge: Harvard University Press, 2008. Tuck, Richard. The Sleeping Sovereign: The Invention of Modern Democracy. New York: Cambridge University Press, 2016. Varshney, Ashutosh. “Why Democracy Survives.” Journal of Democracy 9 (1998): 36–50.