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Protests against the CAA and NRC are using the Constitution as a symbol. Photo: Getty Images
Protests against the CAA and NRC are using the Constitution as a symbol. Photo: Getty Images

The document that defines an Indian citizen

In his urgent new book, Madhav Khosla explores the thoughts and ideas that form the bedrock of the Constitution

In the last few weeks, as protests continue across the country, battle lines have been drawn across the idea of India and the identity of an Indian. Is India to be traced back to ancient times—with the history of Buddhist and Hindu rulers? Or is it founded in the 17th century, with the Mughals and Marathas redrawing the map of what we know as modern India? Or is India a creation of the British? Or is there some other understanding of India rooted partly in mythology and partly in history? For Madhav Khosla, author of the fine new book India’s Founding Moment: The Constitution Of A Most Surprising Democracy, India as we know can be traced to the writing and adoption of the Indian Constitution.

Khosla’s book is not a historical event study. Nor is it a look at the Constitution told through the great individuals who framed the document. Instead, the book is a study of certain traditions of thought, about democracy and constitutionalism, at the birth of India as a republic. Ideas matter, and this book illustrates the ideas that informed the constitutional project, and how the framing of the Constitution changed India’s trajectory. And many of the ideas debated at the time are still relevant today.

Studying the Constitution as well as its framing is an arduous task for any scholar. Aside from the final output being the lengthiest constitution in the world, the framing was no simple task. During three years of deliberation between 1946-49, the constituent assembly moved, discussed, and voted on 2,473 amendments out of a total of 7,636 tabled amendments to the various drafts of the Constitution. Drafts, memoranda, notes, minutes from subcommittees, and letters from constituent assembly members run into thousands of pages. As do the transcripts of every single debate of the constituent assembly.

My focus, as a constitutional economist, has always been the details in these debates, and in the amendments and drafts, to decipher the interests of the individual framers and the emergent political structure as a result of negotiating those interests. But this book’s triumph is Khosla’s ability to abstract away from the detail and individual interests, and see the main ideas that informed the emergent constitutional order. This is not to say the book is devoid of detail. On the contrary, with almost 50 pages just dedicated to endnotes and references from constitutional framing, it is meticulously researched. But instead of a chronological laundry list, Khosla extracts three major themes at the framing to explain—the choice to write and codify the constitutional text in such detail; the choice of a highly centralized political structure; and the framework of representation, given the religious and caste fractionalization as well as diversity of India.

The Indian Constitution has puzzled scholars because of the kinds of issues included in it. It also has some bizarre aspects—like the tension between detailing individual rights that constrained the state, while simultaneously enumerating detailed exceptions to those guarantees. The odd choice of enumerating positive entitlements in the Directive Principles of State Policy with the full awareness that they could not be enforced. And the even stranger choice of restricting protection to procedural instead of substantive due process.

Khosla, in an aptly titled chapter, “The Grammar Of Constitutionalism", argues that the choice to adopt a written constitution, of such length and verbosity, was to create a shared knowledge and a common understanding of democratic political processes. This was critical for a people who had no experience of democracy and were suddenly burdened with the gift of universal adult franchise. The framers chose to write such a detailed set of instructions, sometimes to constrain the state and also to empower the state, because they believed that open-ended law was not a virtue in a society lacking experience with democratic decisionmaking. And so, every tension is not only discussed and debated, but also included within the constitutional text. Khosla argues that the codification of the Constitution is also a pedagogical project, to educate people on the workings of a democratic republic, in addition to being a constitutional project.

Next, Khosla moves to the question of why the framers centralized all the power in the Union government. Given that India as we know it was stitched together from the British territories and over 500 princely states indirectly under the British, the obvious—and Gandhian—vision was a federation of local or regional governments with a decentralized power structure. But Indian framers chose a different approach, shunning such localism. The reason, Khosla argues, is their idea of a modern state with the ability to deal with the major problems of the time like poverty, famines and the lack of industrial development. Almost every economist at the time favoured socialist planning and the plans detailed by statesmen like M. Visvesvaraya needed a strong Central government. But the other aspect was that localism in India had produced and perpetuated some perverse social orders like untouchability. For the framers, local and regional governments could not construct a force that could counteract the tenacity of local cultural forms that frequently harboured unequal and unconstitutional ethos.

India’s Founding Moment—The Constitution Of A Most Surprising Democracy: By Madhav Khosla, Harvard University Press, 240 pages,  <span class='webrupee'>₹</span>599
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India’s Founding Moment—The Constitution Of A Most Surprising Democracy: By Madhav Khosla, Harvard University Press, 240 pages, 599

The final issue tackled by Khosla is the idea of representation in a society so fragmented by religion and caste, given the backdrop of Partition and communal violence, and the persistence of untouchability and caste divisions. Representation in such a divided society with universal adult franchise brought forth the issue of whether individual identity or group identity should be recognized for the purpose of electoral choice. Separate electoral constituencies for different religions and different castes had long been an issue in the nationalist movement. Khosla argues that the idea of separate electorates along communal lines was discarded because it would forever condemn Indians to compulsory identities predetermined at birth. If communal issues required placing the individual over the group, then caste problems demanded the reverse to achieve a truly equal society. The Constitution required a recognition of special exceptions for groups that were historically oppressed and constrained, not through separate electorates, but by other means like reservations.

The book is neither about our identity, nor about the current protests, but it is certainly relevant today. The protests against the Citizenship (Amendment) Act and the proposed National Register of Citizens that have dominated the last few weeks revolve around who is Indian, and how we go about determining this. Spontaneously, protesters have chosen the Constitution as a symbol of their protest. From mass recitations of the Preamble to chanting Articles 14 and 15 that guarantee equal protection and protect against discrimination, the Constitution is the focal point. And this is no coincidence. The idea of being Indian as an identity irrespective of race, caste, and ethnicity comes from the founding moment, before which being Indian meant something else. The idea of how we express ourselves in a democracy is also one that Indians associate with the Constitution. To protest against an already elected government, with over four years remaining, we take to the streets. But for forthcoming contests, like the Delhi election, Indians will flood the polling booths. And this grammar of democracy and constitutionalism can be traced directly to India’s founding moment. In this sense, the pedagogical project of India’s constitutional framers is a success.

The ordinary Indian may not know the procedural and substantive details of our lengthy and imperfect Constitution. But Indians know that their identity as an Indian, their nation, and the means of preserving it, is governed by the Constitution. What Khosla excellently captures as the essence of India’s founding is also found in the young protesters’ fight for their idea of India.

Shruti Rajagopalan is an associate professor of economics at State University of New York, Purchase College, and a senior research fellow with the Mercatus Center at George Mason University.

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