In a constitutional democracy, politics cannot be reduced to the advocacy of pre-set interests
Shashi Tharoor | 17 Jan, 2020
Jawaharlal Nehru (seated left) and Rajendra Prasad (centre) at the swearing-in of India’s first law minister, BR Ambedkar (extreme right), 1950 (Photo: Alamy)
INTELLECTUAL HISTORY IS RARELY WRITTEN, AND even more rarely still is it written readably. The challenge is all the more acute when the subject also takes in issues of constitutional arguments, legal jurisprudence and political debates, as well as theories of democracy and representation. The brilliant young scholar Madhav Khosla, who has fast emerged, over three relatively slender volumes, as the most original and perceptive new analyst of the Indian Constitution, rises admirably to the challenge. India’s Founding Moment : The Constitution of a Most Surprising Democracy is a tour de force—formidably erudite, full of detailed research and incisive insight, closely argued and informed by both constitutional morality and political theory, it breaks impressive new ground in telling a familiar story through a refreshing new lens.
As Khosla explains, the political apparatus of establishing a constitutional democracy in postcolonial India—a land that was ‘poor and illiterate; divided by caste, religion, and languages; and burdened by centuries of tradition’—had three key elements: the explication of rules through codification; the existence of an overarching state; and representation centred on individuals. In each case, he says, there was an attempt to free Indians from prevailing types of knowledge and understanding, to place citizens in a realm of individual agency and deliberation that was appropriate to self-rule and to alter the relationship that they shared with one another. Khosla demonstrates why the founding of the Indian republic on this basis was ‘the paradigmatic democratic experience of the twentieth century’.
The founders of the Republic chose—as the chairman of the Constitution’s Drafting Committee, BR Ambedkar, recognised—to impose a liberal Constitution upon a society which was not liberal. They saw the principles of liberal constitutionalism—the centrality of the state, noncommunal political representation and so on—as responsive to the challenges posed by the burden of democracy. In keeping with contemporary liberal thought, they committed India to a common language of the rule of law, constructed a centralised state and rejected localism and instituted a model of representation whose units were individuals rather than groups. The key objective, according to Khosla, was to ‘allow Indians to arrive at outcomes agreeable to free and equal individuals’.
This was not easy. The text of the Constitution, Khosla argues, had to provide, rather than assume as established, the shared norms on which self-government was predicated. The Constitution was, in other words, conceptualised as a pedagogical tool: codification was used to explicate what constitutionalism within a democratic society meant. It would be an instrument of political education—aspiring to nothing short of building a new civic culture. Numerous socio-economic rights were recognised in the constitutional text but not as judicially enforceable. Several enforceable civil and political rights, such as the right to free speech and expression, were granted, though subject to various exceptions and limitations, and their enforcement was guaranteed by an independent judiciary. A contest also occurred between procedural due process and substantive due process in the context of the right to life and personal liberty.
Nehru and Ambedkar were preoccupied with separate concerns. But they shared an understanding of power that went beyond formal, legal conception and entailed ‘a deeper sociology’
Constitutions are, of course, (and Ambedkar explicitly made this point) tools to control and restrain state power. The challenge lies in reconciling restrictions on state power with popular rule—to prevent temporary majorities from completely undoing what the Constitution has provided. Khosla suggests that the founders of the Indian republic held a conception of democracy that went beyond majority rule and rejected, in Ronald Dworkin’s notable phrase, ‘the majoritarian premise’. They subordinated politics to law.
As Ambedkar put it, the rights of Indian citizens could not ‘be taken away by any legislature merely because it happens to have a majority’.
Khosla tells us, ‘The struggle for Indian independence was not simply a struggle for freedom from alien rule. It was a shift away from an administration of law and order centred on despotism.’ He evokes the idea of ‘constitutional morality’, meaning ‘the commitment to constitutional means, to its processes and structures, alongside a commitment to free speech, scrutiny of public action [and] legal limitations on the exercise of power.’ This was how freedom was intended to flourish in India.
Of course, he concedes, it is perfectly possible to pervert the Constitution, without changing its form, by merely changing the form of the administration to make it inconsistent and opposed to the spirit of the Constitution. Ambedkar argued that constitutional morality ‘is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic’. He insisted that the directive principles—an unusual feature of the Indian Constitution not found elsewhere—were necessary because although the rules of democracy mandated that the people must elect those who will hold power, the principles confirmed that ‘whoever captures power will not be free to do what he likes with it’.
At the same time, the Constitution wanted Indians to have a new understanding of authority. They would be liberated through submission to an impersonal force that saw them as equal agents and that liberated spirit would make possible socio-economic transformation. This was important because to leaders like Jawaharlal Nehru—whose vision of democracy entailed equality and a decent standard of living for all—the establishment of a free and democratic India required the substitution of the economic power of a few rich individuals by a form of state control that could end poverty, reduce unemployment and improve material conditions.
Khosla demonstrates that Nehru and Ambedkar were preoccupied with separate concerns—Nehru was more attentive to the promise of economic transformation while Ambedkar was anguished over the afflictions of caste. But they shared an understanding of power that went beyond formal, legal conception and entailed, in Khosla’s words, ‘a deeper sociology’. To determine where to locate power, one would have to invent a force that could dismantle the structures of influence that pervaded India’s provincial villages and feudal havens. That force was a centralised state. By locating authority at the Centre, one could oppose the tendencies of a backward society and exercise governmental power progressively. The state, it was assumed, would commit itself to the welfare of its weakest citizens.
In some ways this explained their willingness to accept Partition, because it permitted centralisation in what remained of India. Ambedkar, in particular, was scathing about India’s villages, calling them ‘the ruination of India’ and ‘sink[s] of localism, den[s] of ignorance, narrow-mindedness and communalism’. “I am glad,” he remarked, “that the Draft Constitution has discarded the village and adopted the individual as its units.” Centralisation enabled the individual to become the unit of organisation. Both Nehru and Ambedkar, in Khosla’s telling, held that India needed democracy and it needed modernity—and democracy and modernity needed one another.
The book is particularly fascinating in its discussion of the communal question through the debates in and around the Constituent Assembly. Khosla finds that Maulana Azad’s composite nationalism and belief in a united India did not necessarily go alongside a theory of representation that transcended community lines. His vision of territorial unity proceeded together with his religious commitments. Nehru, on the other hand, argued, “There is no religious or cultural problem in India. What is called the religious or communal problem is really a dispute among upper-class people for a division of the spoils of office or of representation in legislature.” Nehru dismissed group-based thinking as “a medieval conception which has no place in the modern world”. Jinnah’s politics were the “politics of the Dark Ages”, since the challenges that modernity posed were economic and political rather than religious, and the focus on the latter was an error. To Nehru, even after Partition, India would still contain minorities. His solution lay in political practice. ‘It was the lived experience of toleration, acts of friendship and assistance,’ Khosla explains, ‘that could pacify communal tensions.’
The Nehru-Ambedkar constitutional vision was challenged outside the Constituent Assembly rather than within it, by those associated with the Hindu Mahasabha and its offshoots, notably VD Savarkar, who invented the concept of Hindutva, and the longest-serving RSS sarsanghchalak (from 1940 to his death in 1973), MS Golwalkar. The Hindutvavadis’ critique of the Constitution was a fundamental one; their idea of its flaws lay in their core belief in the idea of a Hindu Rashtra, as opposed to the civic nationalism enshrined in the Constitution of India. In this they departed from earlier Mahasabha leaders like Lala Lajpat Rai, who had argued that “nothing could be more disastrous to the success of representative institutions than their constitution on a denominational basis.” Rai’s premature death from blows received in an anti-British demonstration deprived the Hindu Mahasabha of his enlightened vision, which believed that Hindus and Muslims could “make common cause in political work”.
According to Savarkar and Golwalkar, India’s independence from colonial rule in 1947 did not constitute real freedom because the Constitution was based on the ‘perverted concept of nationalism’ that ‘located all who lived on India’s territory as equal constituents of the nation’. A nation, they argued, was not a territory but a people, and the people of India were the Hindu people, those for whom India was their pitribhumi (the land of their ancestors) and their punyabhumi (their holy land). The Hindus were a nation because they shared the same race, the same religion, the same spiritual and intellectual culture and the same Sanskrit language. For Savarkar and Golwalkar, those who resided in this territory without satisfying these criteria could not be considered as part of the nation. They could only exist as foreigners, lacking the rights and benefits of citizenship.
For Golwalkar, as Khosla explains, the past showed that ‘here was already a full-fledged ancient nation of the Hindus and the various communities which were living in the country were here either as guests, the Jews and Parsis, or as invaders, the Muslims and Christians’. Both Savarkar and Golwalkar sought to place all Hindus under one umbrella and exclude all others. Their solution to the minority problem was non-recognition of the minority. The Constitution should be scrapped, they argued, and replaced with one written for a Hindu Rashtra—a nation of, for and by the Hindus. Hindutvavadi ideologues articulated this critique as soon as the Constitution was adopted.
It is striking that the Constituent Assembly rejected separate electorates, weighted representation and reservations on the basis of religion. Only days before Indian independence and the Partition of British India, Sardar Vallabhbhai Patel, in his capacity as Chairman of the Advisory Committee on Minorities and Fundamental Rights, wrote to the President of the Assembly, Rajendra Prasad, to explain why separate electorates had been rejected. Differentiated citizenship on the basis of religion, Patel argued, had already been tried in the colonial era and had led to Partition. The answer lay in moving away from a representative framework that recognised identities that were regarded as stable and fixed and toward a model of citizenship centred on the political participation of individuals. Such a model would allow the categories of majority and minority to be constantly defined and redefined within the fluid domain of politics and it would thereby offer the greatest form of security.
This fundamental difference of opinion continues to haunt our politics today. The nationalist movement was divided between two sets of ideas, held by those who saw religious identity as the determinant of their nationhood and those who believed in an inclusive India for everyone, irrespective of faith, where rights were guaranteed to individuals rather than to religious communities. The former became the Idea of Pakistan, the latter the Idea of India. Pakistan was created as a state with a dominant religion, a state that discriminates against its minorities and denies them equal rights. But India never accepted the logic that had partitioned the country: our freedom struggle was for all, and the newly independent India would also be for all.
On the other hand, the Hindutva idea of a Hindu Rashtra, espoused today by the BJP/RSS, is the mirror image of Pakistan—a state with a dominant majority religion that seeks to put its minorities in a subordinate place. If they succeed, they would create a Hindutva version of Pakistan, and Khosla’s detailed account of the constitutional deliberations at the founding of our Republic makes it clear that that is not what our freedom movement fought for, nor is it the idea of India enshrined in our Constitution.
Though Khosla was writing before the BJP Government passed the 2019 Citizenship Amendment Act, which for the first time introduced religion as a determinant factor for Indian citizenship, the debates he summarises with great intellectual acuity explain why the basic structure of the Indian Constitution makes the Government’s position untenable. The Constitution makers—not just Ambedkar and Nehru, but also avowedly faithful Hindus like Govind Ballabh Pant, whom Khosla quotes at length—decried the notion of religion playing any role in citizenship, arguing that each individual voter exercised agency in the democratic project and should not be reduced to the pre-existing loyalties of religious affiliation. ‘For India’s founders,’ Khosla explains, ‘one could not be a political agent unless one’s political identity was self-created.’ The Constitution granted representation not to one’s pre-determined identity (religion) but to one’s individual expression of agency. That was why the individual vote was so important. Democratic politics cannot be reduced to the advocacy of pre-set interests; interests instead had to be expressed through politics. ‘The very constitution of one’s identity as a citizen,’ Khosla explains, ‘was itself a form of freedom’.
Not, alas, for the Hindutvavadis. The ‘flaw’ of ‘territorial nationalism’ excoriated by Savarkar and Golwalkar was the same one identified by Deendayal Upadhyaya, undoubtedly the principal ideologue of the Hindutva movement of today, who is honoured and exalted daily by the BJP-led Government; during Upadhyaya’s centenary year, the Prime Minister instructed every ministry to hold seminars on his thoughts. Upadhyaya argued that India had written a Constitution imitative of the West and divorced from any real connection to India’s mode of life and from authentically Indian ideas about the relationship between the individual and society. Upadhyaya argued that the Constitution should instead embody a Hindu political philosophy befitting an ancient nation like Bharat. Unfortunately, Khosla’s work, focusing as it does on the debates of the 1940s, does not mention Upadhyaya at all.
Today, India is in the grip of the very majoritarianism that Ambedkar had so presciently warned against. It seems the government’s oft-expressed admiration for Ambedkar and Patel are only lip-service
Upadhyaya was clear that reducing the Indian national idea to a territory and the people on it was fallacious. In building his case for a Hindu Rashtra, Upadhyaya specifically disavowed the existing Constitution of India.
Having rejected its premise, Upadhyaya was scathing about the Constitution’s drafting and adoption: a nation, he argued, ‘is not like a club which can be started or dissolved. A nation is not created by some crores of people passing a resolution and defining a common code of behaviour binding on all its members. A certain mass of people emerges with an inherent motivation’. ‘It is,’ he added with a Hindu analogy, ‘like the soul adopting the medium of the body.’
Upadhyaya thus fundamentally questioned the very legitimacy of the Constitution as well as the process of discussion, debate and resolution by which it was created. For Upadhyaya, the debates Khosla analyses, and the conclusions these reached, are irrelevant; the absence of the Hindu Rashtra idea in the Constitution was unacceptable. This makes all the more curious the enthusiastic zeal with which Upadhyaya’s devotees today—from Prime Minister Modi, who declared the Constitution to be his only holy book, to others below him—swear by it and celebrate every milestone in its adoption. The man who rejected the Constitution of India in conception, form and substance would be astonished to find his supposed acolytes extolling its every line and holding special commemorations in Parliament with grandiloquent speeches to mark the anniversary not just of its adoption—which, after all, is Republic Day—but even of its passage by the Constituent Assembly in a newly anointed ‘Constitution Day’. If Upadhyaya had not been cremated, he would be rolling over in his grave.
Still, as the Citizenship (Amendment) Act and the threatened nationwide National Register of Citizens proves, the debate is not over. It is a pity that Khosla does not quote the famous speech of Ambedkar on November 4th, 1948, on the subject: “To diehards who have developed a kind of fanaticism against minority protection, I would like to say two things. One is that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the State. The history of Europe bears ample and appalling testimony to this fact. The other is that the minorities in India have agreed to place their existence in the hands of the majority… They have loyally accepted the rule of the majority, which is basically a communal majority and not a political majority. It is for the majority to realise its duty not to discriminate against minorities.”
Today, India is in the grip of the very majoritarianism that Ambedkar had so presciently warned against. The Prime Minister’s great hero, Sardar Patel, had urged in the Constituent Assembly on May 25th, 1949: “It is for us who happen to be in a majority to think about what the minorities feel, and how we in their position would feel if we are treated in the manner they are treated.” But it seems the Government’s oft-expressed admiration for the likes of Ambedkar and Patel are only lip-service; their real ideology is that of Savarkar, Golwalkar and Upadhyaya.
‘In asking what it might mean to be Indian,’ Khosla writes, ‘the nation’s founders were asking what it might mean to be free individuals, persons who ruled themselves.’ The Government’s current answer reduces individuals to their religious affiliations and denies them their agency as free citizens of our democratic republic. Apologists for the Modi Government argue that its decisions reveal its fundamental commitment to constitutional democracy. This must surely imply faith in the Constitution of India and its basic structure as defined by the Supreme Court, including secularism and minority rights. In keeping with these affirmations, will the Prime Minister himself now announce to the nation, “though I admire Deendayal Upadhyaya, I disagree with him about the Constitution”? If he were to do so, he would vindicate the legacy so meticulously and brilliantly detailed in Khosla’s book.