Grand Tamasha

Republic Day Episode: Madhav Khosla on India’s Founding Moment

Episode Summary

What does it mean to be truly Indian?

Episode Notes

On January 26, 2020—Republic Day—India celebrated the 70th anniversary of its landmark Constitution. This milestone comes at a time when India is engaged in an intense, contested, and sometimes violent, debate over India’s constitutional values and what it means to be truly Indian.

It is for this reason that a new book by the scholar Madhav Khosla on the Indian Constitution could not have come at a more opportune time. Madhav’s new book, India’s Founding Moment: The Constitution of a Most Surprising Democracy, places the Indian Constitution under a microscope—drawing on insights from philosophy, political science, history, and legal scholarship. 

Madhav and Milan discuss the motivations behind India’s embrace of liberal democracy, the Indian roots of the Indian Constitution, and how to think about the pressing, modern-day questions around citizenship.  

Episode Transcription

Intro:                            00:00                "Unabashed" "The most unpredictable" "becomes a headline." "The most volatile" "outrageous behavior." “Unsubstantiated narratives" "A battle of personalities."

Milan Vaishnav:            00:11                Welcome to Grand Tamasha. I'm your host Milan Vaishnav of the Carnegie Endowment for International Peace. On January 26, 2020, India celebrated the 70th anniversary of its landmark constitution. The milestone comes at a time when India is engaged in an intense, contested, and sometimes violent debate over India's constitutional values and what it means to be truly Indian. It's for this reason that a new book by the scholar Madhav Khosla on the Indian constitution could not have come at a more opportune time. Madhav's new book, "India's Founding Moment: The Constitution of a Most Surprising Democracy," places the Indian constitution under a microscope, drawing on insights from philosophy, political science, history, and legal scholarship Madhav himself as a lawyer, turned political theorist who teaches at Columbia Law School and Ashoka University. I'm pleased to welcome to the Hindustan Times studio here in New Delhi. Madhav, thanks for coming on the show.

Madhav Khosla:            01:00                Thanks so much for having me alone.

Milan Vaishnav:            01:02                So Madhav, full disclosure here, you and I have known each other for a long time. When you're in a good mood, you reluctantly called me a friend, but it also means that I've had a chance to read several drafts of the book, but it's been lovely to see it kind of come out in full. Do you feel like a sort of heavy burden has been lifted off your shoulders?

Madhav Khosla:            01:20                I think so. I mean, it's coming out at a strange moment. I began writing it eight years ago and at the time even I was barely interested in it and now somehow it's, it seems to be more relevant and timely than perhaps even I would like.

Milan Vaishnav:            01:34                So maybe let's go back to the eight years ago. So, and let me start with a kind of naive question. You know, it can't be said that no one has written extensively on the Indian constitution, right? There are lots of books. It's a subject that has not been overlooked by a range of scholars and a range of disciplines. But what was it in your mind that was kind of missing in the literature? What drove you to sort of take a fresh look?

Madhav Khosla:            01:59                The primary thing that drove me was actually debates that had nothing to do with the Indian constitution. It was a set of writings on the 19th century about the justifications for empire and the thought at the time that look empire was justified partly on the ground that a place like India couldn't have self government. It just couldn't be a democracy. And suddenly a hundred years later it is a democracy. And I was puzzled by the fact that what were these guys thinking? And somehow a lot of us write and read about India being an unlikely, surprising democracy. But there's been very little written about how the Indian founders themselves thought about it. And so that sort of was the driving impulse I think.

Milan Vaishnav:            02:46                So I just want to quote a paragraph from your introduction that intrigued me. So we'll read it in full. Quote. It's certainly true that the constitution embraced several ideas associated with modern constitutional liberalism, the recognition of rights, the power of judicial review, the principle of separation of powers and so forth. But this fact is a puzzle, not an explanation. Now in retrospect, sitting here today in 2020 India's embrace of liberal democracy seems so obvious, like it's been overdetermined, but why wasn't this sort of an inevitable outcome in your mind?

Madhav Khosla:            03:19                I mean, I think it's a puzzle in multiple ways, right? So one way in which it's a puzzle. It's just to take off from what I said, which is that nobody really thought that it could be possible. But the second is that if you see the traditions of Indian intellectual history prior to the constitutional founding, you really don't see a long tradition of liberal thinking at all. Right? The most famous political figure is Gandhi who's anything but a straightforward liberal. People like Nehru and Ambedkar. I'm much more interested in the economy and in caste respectively. And so who really at the time is actually writing about rights, separation of powers, federalism, the classic themes of constitutional liberalism? Nobody.

Milan Vaishnav:            04:07                But the conventional wisdom sort of goes something like this, which is, you know, the constitution is essentially an extension of the 1935 Government of India Act. And there were some adaptations and then they sort of put it into place. You specifically call this view out as misguided. Tell us why.

Madhav Khosla:            04:26                I mean I think it's deeply misguided and I think it's also one of the reasons why in India's constitutional founding hasn't been studied, right? The reason why they've only been two real books, Granville Austin's in 1966 and now this one on the constitutional founding is because people think there isn't a story to be told. And I think that view was misguided for the fundamental reason that people do this naive thing by comparing how many provisions are similar, assuming that every provision is equally important. But actually at the heart of India's constitution is universal suffrage, right? At the heart of it are things like constitutional rights and those are not in the 1935 act. And so their departure is profound and radical, not just from the 1935 act, but from established democratic theory for hundreds of years.

Milan Vaishnav:            05:14                So let me actually talk about universal suffrage for a second because that's something I wanted to ask you about. You know, what was interesting about it is not just the adoption but the kind of relative, I think lack of sort of discussion about it. You know, in, in, in most advanced democracies in the United States there was a very gradual extension of the franchise over hundreds of years. But that approach was a nonstarter in India. Right?

Madhav Khosla:            05:40                Completely. It was a nonstarter in India, and I think it's a nonstarter for a few reasons. One reason why it's a nonstarter is because the political movement has a certain kind of moral imagination where people are seen as equal. The second is it's a nonstarter for the reason that is actually mentioned in the Constituent Assembly by a few people that in a country like India, if you're going to limit the franchise, that means nobody's going to really get to vote. If you don't get people, if you don't give poor people that right to vote who the hell is going to vote, right?

Milan Vaishnav:            06:10                Or if you only give it to literate people for instance.

Madhav Khosla:            06:12                Exactly. And so in some sense it wasn't an option. And so, universal suffrage was almost a fait accompli. And so what's interesting in the Constituent Assembly debates is not whether you can limit the suffrage, but how do you create a constitutional architecture to meet the challenges that will be involved with everybody voting?

Madhav Khosla:            06:32                So now the bulk of the book focuses on three themes that lay sort of at the heart of these Constituent Assembly debates. So codification, centralization of power and representation. So let's kind of go through each of these very quickly. If you know anything about the Indian constitution, you know that it's long, right? In fact, I think you say it's probably commonly referred to as the longest constitution in the world.

Madhav Khosla:            06:53                It's humongous, right? And the thing is that everybody, Milan, at the time is actually talking about this. Carl Schmitt is mentioning the fact that it's, it's extremely bulky and strange in its content. Ernest Barker who's a major English political theorist, begins his definitive book with the, with quoting the preamble to the Indian constitution, right? So people at the time are noticing that something special is happening.

Milan Vaishnav:            07:20                But what I found interesting and I'd never known is that you discussed the fact that Nehru embraced the idea of a written constitution on the one hand, but on the other, he was very worried that if you had this very lengthy constitution that would imply a very rigid framework that was highly inflexible. But clearly he was convinced. What convinced him?

Madhav Khosla:            07:41                I don't know if Nehru was convinced as much as narrow lost out in those debates. Right? And I think that Nehru was actually in the camp of people in the Constituent Assembly who has a view of a thinner account of how what constitutions should be and Nehru loses. Right. And the interesting question at that moment is why does he lose? What's the argument on the other side? And I think the argument on the other side is, look, in most countries you don't need a very long constitution because the democratic norms are already existing in society. So the constitution doesn't need to supply them. Whereas in India, you actually need to create a grammar of constitutionalism so that we know how to actually converse with each other and engage in politics. It's literally like creating a language, right?

Madhav Khosla:            08:34                So the question to ask is if you want to get a bunch of people and ask them to speak a language that they don't already know, you're going to have to spend a lot more time explicating the grammar. And that's basically what the constitution is doing. It's explicated the grammar of democracy.

Milan Vaishnav:            08:48                So I want to ask you one more thing about codification cause you spend a fair amount of time in that one chapter talking about the Constitution's kind of simultaneous, you know, on the one hand articulation of a list of fundamental rights and then the other hand a list of limitations on those rights. Right? And from an outside perspective, that seems odd. So if you take the U.S. Constitution as like kind of your baseline you have the right to free speech. There it is. Period. Full stop. Why did the framers of the Indian constitution feel the need to list rights and then immediately caveat or limit them?

Madhav Khosla:            09:22                So a lot of people, Milan, have read exactly what you mentioned and they've said, look, this means that they didn't care about rights that much because you're mentioning that, right? And you're limiting it. Actually it's quite the opposite because what the framers are saying is, look, nobody knows what this right means. In countries like America, the limitation is already taken as given or the limitation is being performed by the judiciary. We can't trust anybody because nobody understands what the right means. Now that these established limitations exist, we are in fact just putting them in the text to explain what the right means. And actually you could say the limitations as not only limiting the right but actually is limiting the limitations themselves. Right. You could say that what the framers are doing are not seeing. It can be limited on ABC ground.

Madhav Khosla:            10:14                They're saying it can only be limited on ABC ground. Right. And so you could spin the argument both ways, which is why I don't think it's quite captured by the framework of limitation. It's more captured by saying, explain to me what free speech means. I actually have no idea.

Milan Vaishnav:            10:31                And they didn't feel confident enough in leaving that up to the courts.

Madhav Khosla:            10:36                They didn't feel confident enough in leaving that up to the courts, he in part because of the extreme degree of fluctuation and idiosyncrasy of American jurisprudence at the time, right? So American legal constitutionalism is haphazard, convoluted, contradictory for a number of decades. And they cite that they engage with it extensively and they're like, why would you want to put this within the domain of the courts and be subject to that kind of fluidity? And the second is also, if there is a kind of conceptual clarity, then you don't need to leave it to the courts, right? So it's not only that you don't trust the judiciary to do it, but you wouldn't need to. You've already got the answer.

Milan Vaishnav:            11:17                So let me ask you now about the second of the kind of three pillars, right? Codification, centralization, representation. So on the question of centralization, as you argue, you know, the constitution provides for a federal framework, but it's one that has a lot of unitary biases, right? So we know the center has these draconian powers of imposing an emergency. We know it can dismiss elected state governments, you know through the president's rule. But to what extent was this decision purely an outcome of circumstance? Basically you've gone through the horrors of Partition, you were worried about the potential horrors of secessionism. I mean are those two things kind of shaping this fundamental choice?

Madhav Khosla:            11:57                So I actually don't think they are and part of my effort is to say that look, you can't see a unitary state or a quasi-unitary centralized state emerging just out of fear of balkanization. Actually you need to confront the reality that for most of the framers, there is a choice between two types of domains. There is society and there's the state. And the question is that if Indian society is actually so ridden with primordial forms of thinking and with those forms of association, the only way to liberate those individuals, is to put them under a common umbrella and that common umbrella is the state. So the creating that common umbrella itself means that people share a new relationship with one another, right? There's a new kind of association that's formed just because they are all under the same kind of authority. And that's a model vision, right? It's not just a vision that's coming out of some fear that the country may split. In fact, they are relieved that the cabinet mission plan has failed because now they can confront the problem of centralization head on, right? They're no longer cabin-ed into those legal requirements under the cabinet mission plan, which was frustrating many of them.

Milan Vaishnav:            13:17                So on the state society division that sort of takes us to representation and there a lot of what you focus on is how the constitution tries to handle the explosive issues of both religion and cast. And I just want to quote something that you write where you say in the case of religion, the challenge was to strike a balance between a common politics and distinct religious faiths. What can loosely be called accommodation with regard to caste. However, the aim was not survival but extinction, which is about the most succinct, I think, explanation I've ever heard of how you've dealt with these two things. But it kind of brings us also to the present debate Indians are having, you know, over questions of identity. You know, as we reflect on recent events, whether it's the abrogation of Article 370 in Jammu and Kashmir, we've had the Supreme Court's landmark decision on the Babri Masjid. We're having all of these debates now about the Citizenship Amendment Act and an NRC. We'll continue to have them. Do you think this consensus over accommodation of religious differences has been shattered or is fragmenting in some fundamental way?

Madhav Khosla:            14:24                I think it is. I think it is. And I think the question is, is it, has it been shattered just today? Has it, when, when did it begin? Right? Is it a problem that has been brewing for decades? So clearly it's shattered today. Right? And I think, I think the one lesson to draw from the founding consensus is that any kind of attempt to solve the problem through identity is actually not to be a solution at all. Because whichever way you cut it, if you focus on majorities, you're not giving minorities an argument for why they should submit to authority in the first place. If you're focusing only on minorities in some form, you're actually leaving majority's thinking that, look, we are larger in number, why shouldn't our view prevail? And the only question is therefore can you provide some kind of universal framework that can liberate it from the question of identity and see people as individual where they are actually forging their preferences in the crucible of politics rather than their preferences already being predetermined and then politics managing it in some fashion?

Milan Vaishnav:            15:33                But then wouldn't that argue for other remedies that those on the ideological right are pushing for with something like Uniform Civil Code, right? I mean, isn't that something which then liberals should in theory embrace because it's more in line with what the framers had in mind?

Madhav Khosla:            15:50                So I certainly think that liberals should embrace a Uniform Civil Code. I think the question for us at this moment is politically, can we have a Uniform Civil Code in ways that makes vast portions of the population actually feel included, both in its content and in its facet. But in theory, I think certainly India should have a uniform civil court. And I think that it's not surprising that people like Nehru and people like Ambedkar wanted it. I think one of the tragedies of Indian liberalism is that liberals gave up on that. Right? So I fully agree with that. I think the question will be how it's done. Right? And can it be done in a way that's actually fair? Not simply because you know, that might matter politically, but because processes itself constitute with freedom.

Milan Vaishnav:            16:40                So you hear many people, particularly on the right end of the ideological spectrum arguing that the constitution was essentially an imported document. You know, in some sense it was a foreign imposition is part of the objective of this book or perhaps the, the, the ultimate the consequence, even if it wasn't the objective, a sort of reclaiming of the Indian roots of the Indian constitution?

Madhav Khosla:            17:06                I think that's one way to look at it. I think the more accurate way to look at it though would be that it tries to reclaim the universal roots of the Indian constitution. Because I think the attempt here is to say that look, these values and these principles are neither Indian nor foreign. They are matters that you attach to people if you see them as free and equal individuals capable of agency. And I think that that's something that's important actually about the postcolonial moment in general. There's a great chapter in Anthony Appiah's book um "In My Father's House: Africa in the Philosophy of Culture" where he says that, look, the postcolonial moment was special. Not because it was just a move beyond colonialism and a rejection of it towards something indigenous. It was a rejection to it, towards something universal. Right? And I think that that's the broad thought here. It's not that they think that there's something about free speech, for example, that's specific to being Indian or not Indian. It's what every human being should be entitled to.

Milan Vaishnav:            18:14                But you know, many of the critiques including from the liberal perspective have been that from Nehru on down India's post independence leaders didn't do enough to inculcate a sense of liberalism amongst the population. So they may have held these beliefs and they were shared amongst that small, relatively thin upper crust, but that they didn't really devote themselves to the hard painstaking work of trying to infuse society with those same values. Is that a fair critique?

Madhav Khosla:            18:51                I think it may be. I think the one thing that it does capture is that no constitution can provide for its own success or failure, right? One of the things that I sometimes get asked is, look, the constitution hasn't, this vision hasn't materialized in some way and so has the constitution failed? I don't think that quite sort of addresses the issue because constitutions don't succeed or fail, right? They turn on uncertain, external commitment. And I think the sense there was that, look, if you have an external commitment to this document, this is what the document can deliver, right? But it can't sort of be self executing. Of course.

Milan Vaishnav:            19:31                So this takes us kind of the end of the conversation where I want to ask you a bit of a meta question about Indian democracy. If you kind of step back, you know, after 70 years. The constitution's notable for many things, not just its length but also its ambition, its audacity and in many ways, you know, arguably it's kind of progressive vision. Um after seven decades, how well do you think the practice of Indian democracy has lived up to those noble objectives? Or the kind of constitutional promise?

New Speaker:               20:05                I think like any constitutional democracy, Milan, it's had high points and its had low points. Right? And it's not going to surprise anybody for me to say that, look, it's having a low point at the moment. Right. and I think that that's, I think in that sense we are probably never further away from the vision that the book captures than we have been today. I think the real thing that, that might well underlying to go back to my earlier answer is the political failure, right? Because ultimately the success of what I've put forth in the book is it's a philosophical, conceptual success to that look, actually you can create democratic citizens through democratic politics. And so it upends centuries of thinking about democracy, but it was also a remarkable political success that they could actually get that done. Right? And I think that that's clearly something's missing here today and it's probably that, that latter feature

Milan Vaishnav:            21:11                I guess on the program today is Madhav Khosla. His new book's called India’s Founding Moment: The Constitution of a Most Surprising Democracy. We get a chance to talk a lot Madhav but I don't think we've had a chance to talk in depth about the book. Congratulations and hope you'll come back soon.

Madhav Khosla:            21:27                Thanks so much Milan.

Outro:                          21:27                Grand Tamasha is a co-production of the Carnegie Endowment for International Peace and the Hindustan Times. You can find us on iTunes or wherever you get your podcasts. Don't forget to rate and review. It helps others find the show more easily. For more information about the show and to find the writing we referenced on this week's episode, visit our website Production assistance comes from Megan Maxwell and Rachel Osnos. Tim Martin is our audio engineer and Lauren Dueck is our executive producer. Thanks for listening and see you next week.