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Can a constitution defend itself?
Sudipta Kaviraj
To cite this article: Sudipta Kaviraj (2022): Can a constitution defend itself?, Global Intellectual
History, DOI: 10.1080/23801883.2021.1962580
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GLOBALINTELLECTUALHISTORY
https://doi.org/10.1080/23801883.2021.1962580
REVIEW ARTICLE
Can a constitution defend itself?
Sudipta Kaviraj
DepartmentofMiddleEastern,SouthAsianandAfricanStudies(MESAAS),ColumbiaUniversity,NewYork,
USA
India’sFoundingMoment.Theconstitutionofamostsurprisingdemocracy,by
Madhav Khosla, Cambridge, Harvard University Press, 2020, 240 pp., £36.95
(hardback), ISBN: 9780674980877
History,aBengalisatiristsaid,isconstantlylyinginwaittoplaytricksonus.Initslatest
prank, history has cast doubt on an idea that works as a premise in Khosla’s book: but
ironically, that has made his book more rather than less relevant. Observers of consti-
tutional have been presented with startling surprise over the last five years. It was stan-
dard practice, in studies of democracy, to make a distinction between societies of the
advancedWestwheredemocraticpracticeswereunshakablyfirm,andthirdworldaspir-
antstodemocraticlifewherethesewerepermanentlyinsecure.Acentralquestionthere-
forewaswhatwerethewaysinwhichdemocracycouldsecureitself.Trump’stenurehas
shaken all observers into the realization that, not just for Athenians of Pericles’s times,
but for all – including Americans today, eternal vigilance is the price of liberty. Some-
times it is hard to see if even that price is enough.
ItisinterestingtodiscussconstitutionalismsittinginsideapolityinwhichaPresident
elected by a minority of voters, had already turned some institutions into sultanist
agencies of his personal intentions, and threatened that elections are meaningless
unless he was victorious. He felt he could persuade the Supreme Court – tilted by an
appointment the previous week – to cancel ballots on a massive scale and present him
with a judicial victory snatched from the jaws of electoral defeat. He defied for four
years most rules and conventions of democratic government, eventually launching an
unsuccessful insurrection to overturn the voters’ verdict. Who could predict or even
believe five years back that history had this trick up its sleeve? The question that is
behindKhosla’sexcellentbookisthis:andthisisreallyagoodtimetoaskageneralques-
tion–canaconstitutiondefenditself?Toparseitmorefully,canaconstitution–justthe
powerofwordsonpaper–protectitselffromdefiantinternalfunctionaries?Thisisthe
questionfacedtodaybythetwodemocraciesthatboasttheirprimacyintheworld–the
earliest and the largest. There could not be a better time for Madhav Khosla’s examin-
ationofthecreationoftheIndianconstitution,norabettertimeandplaceforadiscus-
sionofthequestionsatitscentre:isitaparochialconcernforIndia,orageneralonefor
CONTACT SudiptaKaviraj [email protected] DepartmentofMiddleEastern,SouthAsianandAfrican
Studies,ColumbiaUniversity,KnoxHall,606,122Street,NewYork,NY10027,USA
©2021InformaUKLimited,tradingasTaylor&FrancisGroup
2 S.KAVIRAJ
the democratic world? That is why this discussion deserves attention from not just stu-
dents of Indian democracy, but of democratic constitutionalism in general.
Interestingly,recenteventshaveupsetadistinctioninMadhavKhosla’sbook–settled
andevolveddemocraciesoftheWest,andanewpostcolonialdemocracywhichdidnot
havethecircumstanceslongregardedasits‘preconditions’.However,itislikelythatthe
assaultonthetwoconstitutionsmighthavehistoricallydifferentoutcomes.Inspiteofthe
unbelievablewaysinwhichtheTrumpadministrationsoughttodistortandundermine
theconstitutionalapparatus,Americandemocracyislikelytosurvive.Justicesappointed
by flouting conventions, instead of acting with fealty, may defect to the constitutional
side, upholding conventional expectations. Overlooking the small improprieties of
their appointments, they might strike down the large illegalities – like overturning the
results of an election through the judicial process. Admittedly, democratic government
dependsuponproperfunctioningofnon-stateinstitutionslikethepressandeducational
bodies which organize production and circulation of knowledge. In the US, despite the
Trump administration’s sustained efforts, these institutions refused to be suborned. In
India,bycontrast,thepresshasinmajorparts,sidleduptothesideofthegovernment,
and educational institutions have mostly fallen on their knees. Khosla’s work does not
directly attend to such matters, but these concerns relate to a question at the centre of
Khosla’s analysis– can a constitution defend itself? The clarity of Khosla’s discussion
prompts us to interpret the question itself: there is an expectation in the idea of demo-
craticconstitutionalismthatthereissomethingsointrinsicallyrationallypersuasiveand
affectively comforting about it, that once enacted as a purely legal document, a consti-
tutionwillcreateconditionsforitsownsustenance.Whataretheseself-sustainingtech-
niques? Are they likely to be successful? Does their likelihood of success depend on or
vary according to historical and cultural conditions? Nothing is a more important his-
torical and legal question in Indian life, and since what happens in the US affects the
world, in the life of the world today.
Khosla’s work deftly combines three strands of disciplinary thinking not commonly
braided together – legal analysis, arguments of principle from political theory, and
carefulhistoricalcontextualizationofjuridicaldebates.Unlikestandardlegaldiscussion,
which cleave impatiently to juridical questions, ignoring their discursive or sociological
setting,Khoslaopenshisexaminationwithanunconventionalconsiderationof‘precon-
ditions’. Preconditions, as a term, clearly works through two separate meanings –
chronological and logical/theoretical. In its first meaning, an analysis of preconditions
examines the actual circumstancesin European historythrough which disparate demo-
craticlegalinstrumentswerefashioned.Suchoriginsoftendependedheavilyonentirely
transient conditions – a temporary weakness of the Crown before it agreed to sign the
Magna Charta, or the exact setting for the Declaration of Rights of Citizens in France.
Subsequently, many of the legal-juridical instruments that these events produced are
‘theorized’ –i.e. the juridical devices are now considered so vital as requirements that
noconstitutionalsystemcanbeconceptuallyconsideredasdemocraticwithoutdisplay-
ingsuchlegalfeatures.Conditions,asaterm,istransposedfromahistoricaltoatheor-
eticalmeaning.Preconditionsofthefirstkindarehistorical;inthesecondinstance,these
havebeenturnedintological,or‘theoretical’onesforthepriorjudgmentregardingthe
democratic nature of a constitution.
GLOBALINTELLECTUALHISTORY 3
Ifwethinkclosely,theconcept–‘precondition’–isbeingusedincasesliketheestab-
lishmentofconstitutionaldemocracyinIndiaintwosenses–thefirstisatestofthechar-
acter of the constitution in which these theoretical preconditions are embedded in the
judgement itself; and secondly, to ask if cultural and social ‘pre-conditions’ exist which
will allow such a constitution to last and become entrenched, such that the existence
of these legal forms can be taken for granted. When one is folded into the other, it
yields the question that Khosla’s work starts with: when can the constitution produce
conditionsofitsownsecurityandsustenance?OtherscholarsofIndianconstitutionalism
haveraisedthequestionofpreconditionswithclarity–forexample,UdayMehta’sinsis-
tenceonthe‘Jacobin’characterofaconstitutionwhichseekstoestablishasecularstatein
themidstofadeeplyreligioussociety,ortoreducethepracticeofcasteinsocialbehav-
iour.1WhatKhoslabringstothisongoingdiscussionisastartlingtwistfromalegalscho-
lar’sangle:canaconstitutioncreateitsownconditionsofsuccess?Thisisnotatriflingor
redundant issue. All constitutions inaugurated in the period of decolonization had this
question at heart.
The preconditional argument – which underlay the skepticism of colonial authors
about prospects of democracy in India – surveyed European history and noted the
chronologicallypriordevelopmentofseveraltraits:capitalismandinitiationofeconomic
prosperity, individuation of society and decay of gemeinschaftlich forms of collective
belonging, a prior history of state secularism, a slow secularization of culture, growth
of literacy, prevalence of large and relatively efficient bureaucracies, acceptance of a
stable definition of the people-nation (ie, who constitute the nation), pre-democratic
constitutionalism through legacies of a rechtstaat. All these features of history were in
place before modern democracy emerged in the last decades of the nineteenth century
–throughacomplex andinteractivesetofjuridical occurrences–grantingofuniversal
malesuffrageinGermanyin1871anduniversalsuffrageinEnglandin1928.Itwasplaus-
ible to argue that those were the preconditions for the establishment – certainly the
success- of democracy. Acceptance of this precondition argument would have resulted
in an impossibility theorem for India. In a sense, one could argue that just as Lenin’s
claim that a socialist revolution could happen in the most backward capitalist country
in Europe was a refutation of all previous certitudes of Marxist thought, the claim –
made only by a minority of the Indian political elite– that a country that was poor,
clearly dominated by collective affiliations and affects of caste and religion, fragmented
betweennumerouslong-standingregionalcultures–couldbecomeasuccessfuldemoc-
racy – similarly defied the pre-existingcommon sense ofpolitical theory. Therefore the
central task for the constitution-makers was to frame its rules in such a way that these
pre-existing ‘negative’ conditions could not destroy it: rather its rules could, over time,
alter those conditions. This could not be achieved by legal skills alone. It required
serious deconstruction of basic arguments of political theory. Among legal studies,
Madhav Khosla’s work stands out for the unusually heavy emphasis it places on the
workofpoliticaltheoryinthemakingoftheconstitution.Heregardstheestablishment
ofIndiandemocracyasnotjustamarvelofstatesmanshipandpoliticalcraft,butinequal
measure, of political theory. Khosla argues correctly that any expansion of democracy
today–beyondthecircleofWesternstates–wouldhavetonegotiatesimilartheoretical
andandhistoricalchallenges.Democracy,ifitspreadsacrosstheworld,wouldlookmore
liketheIndianexamplethanWesternones.ThatiswhythestoryofIndiandemocracy,
4 S.KAVIRAJ
andtheveryactofitsfounding–thedecisionaboutwhetheritwasatallpossibleornot–
isworthcriticalexamination,andshouldattractattentionofnotjustscholarsofIndian
politics.
I am in so much agreement with the main arguments of the book that I feel a bit
redundantasareviewer;butIshalltrytobringoutwhatIconsideritsrealachievements.
Theintroductionbegins,Ithinkcorrectly,withanexpositionofwhatwasinvolvedinthe
foundingofthreeentirelynewconceptsinEuropeanmodernity–ofanewcontractarian,
ie,‘self-creating’conceptionofsociety,anewideaofaneconomy,andaslowmaturation
of a new semantic content inside the category of the state. Taken together, these three
interconnected entities formed the categorial background to constitutional thinking. In
a strict sense, these categories were new, unfamiliar, as was the business of thinking
about the place of politics in the social universe through them. The constitution was
being constructed in a society which lacked the existence of a prior liberal tradition of
theory and practice. Although Indian political thought had started out with major
liberal statements in the works of Naoroji, R C Dutt, Ranade and Gokhale, this strand
was rapidly overrun by the development of Leftist and Gandhian thought. Both of
these traditions devalued liberal institutional mechanisms and mistrusted the philo-
sophic justifications behind them.2 So India, at the time of constitution-making, had
neither the bigger background preconditions, nor the ‘inner’ intellectual precondition
of a robust liberal tradition. How could the constitution succeed?
At the centre of Khosla’s work is a story of a remarkable intellectual achievement: it
showshowasmallbutclearheadedgroup,ledbyNehruandAmbedkar,craftedthephi-
losophical-theoreticaljustificationbehindthecapaciousandintricateinstitutionalstruc-
ture the Indian constitution established. India turned out to be the most surprising
democracy there has ever been3, defying nearly all of the preconditions required by
prior political theory. Like an immense juridical cobweb, the Constituent Assembly
sought to ‘create’ a structure of democratic constitutionalism ‘out of nothing’. Demo-
cratic foundings are usually seen as purely political rather than daring intellectual acts.
The creation of constitutions after decolonization is commonly seen as a search by a
small coterie of lawyers for appropriate legal provisions from various pre-existing
Western constitutions to produce a derivative combinatory that nationalist leaders
foundappropriatefortheirlocalsettings.Leavingthistiresomepictureoflegalshopping,
Khoslapresentstheprocessasanexciting,highlyinnovative,highlyintensiveprojectof
political theorizing – in which these leaders countered existing theoretical orthodoxies,
answeredlongstandingskepticalcolonialarguments,andinathinkingofgreatsubtlety
andcomplexity,arguedoutacaseforthepossibilityofpostcolonialdemocracy.Instead
ofacceptingtheideathatsuchconstitutionsare‘derivative’ofexistingWesternthinking,
hesurprisesuswithademonstrationthattheargumentforthepossibilityofpostcolonial
democracy refuted some of the most profound and widely accepted axioms of current
thinking. He views the constitution as an example of ‘swaraj in ideas’, a result of deco-
lonizing thought. An example is the astounding quote from Ambedkar about the utter
worthlessness of the constitutions Bentham devised:
Jeremy Bentham jumped at the opportunity of drafting constitutions for these new
countries…When they went there, they were tried by the South American people for a
few years. And afterward every constitution that was framed by Jeremy Bentham broke
GLOBALINTELLECTUALHISTORY 5
topieces,andtheydidnotknowwhattodowiththesurpluscopiesthathadarrived:andall
theSouthAmericanpeopledecidedthatshouldbeburntpublicly.4
Effectiveconstitutionalismwasnot,becauseitcouldnotbe,basedonaderivativereading
ofWesterntheoryorjuridicalprecedents.Onthisreading,theConstituentAssemblywas
a great theatre of ‘de-colonial’ jurisprudence. A particularly startling feature of this dis-
cussion was that traditionalists like the Hindu nationalist members offered echoes of
Europeancertitudesabouttheideasofthenationanddemocracy.FigureslikeAmbedkar
and Nehru, conventionally seen as being driven by Western liberal or socialist ideas,
offeredsolutionsthatdeviatedsharplyfromWesternprecedents.Underlyingthejuridi-
cal analyses, Khosla also offers a reassessment of the theoretical positions of differing
groups.
Cuttingawayinessentials,Khoslafocusesonthethreecentralenterprisesofthecon-
stitution: 1. providing the people with a ‘grammar’ of constitutional life; 2. locating the
mostforcefulengineofstate-poweratthecentre–awayfromthelocalismofsociallifein
ruralIndia–cleverlyplayingamoderniststatepoweragainstentrenchedsocialpowerof
pre-moderncustomsofcasteanditsdominantelites;and3.usingtheconstitutionfora
juridical interpellation to modernrights-bearing individuals againstthetraditional self-
understandings and self-identifications of ordinary voters.
Iftheconstitutionpresentedagrammarofdemocraticlife,itwasverylong.Apolitical
grammar, it could be argued, would be most effective if it is clear and short – like the
Americanconstitution,easilyunderstandableinitslaconicvivacitytoordinarycitizens.
Again, Khosla pays attention to a feature of the constitution that is so obvious that it is
generallyignoredasa‘problem’.Heanalysesthereasoningbehindanobviouslystartling
featureoftheIndianconstitution–itsunusualandforbiddinglength.Ithasbeennoted
that in one sense it is a lawyer’s document, not the citizen’s. Profusion of legal detail
makes it opaque and overwhelming for an average citizen. Schmitt correctly noted
that many of its clauses would be left to ordinary statutory law in usual democratic
systems.5 But the whole point, Khosla shows, is precisely that the circumstances of
origin are not ordinary. The document itself has to rectify the absence of background
arguments stating and justifying high liberal principles. So, the Indian constitution
doestwo–seeminglyrathercontrary–things.Ononeside,itgoesintohighphilosophi-
cal principles, and at the other end, into legal minutiae – neither of which would have
been required in a pre-existing liberal culture. Because there is no prior political
theory, the constitution has to ‘theorize’ itself; because there is no political culture of
shared understanding, the constitution has to spell out to its allegedly authoring
people what the items of these shared understandings are, and how to show that these
exist. The world of politics is a world brought into existence by words; and the
more numerous the words, the more substantive that world is. It is true, as Schmitt
notednegatively,thattheIndianconstitutionisnotcontentwithsettingupalegislature,
italsoenactssomelaws.Butthejuridicalgroundissosparse,thatwithoutsomedetailthe
networkofinitiallegalitywouldnotsurvive.Thetexthadtobeexplicitbecauseithadto
spellouttheunderlyingnormsofdemocraticfunctioning.‘Democracyisonlyatop-dres-
singonanIndiansoilwhichisessentiallyundemocratic’,Ambedkarfeared.Deepcodifi-
cationwhichstretchesupwardandreachesintodetailsdownwardisduetothatreason:
the top layer has to infect and transform the soil below.
6 S.KAVIRAJ
Again,Khosla’sfascinatingchapteronthelocationofpoweratthecentreratherthan
the constituent units shows us the depth and richness of the field of arguments – the
champs – lying behind the decision in favour of a highly centralized state. Constitution
makershadtotakeintoaccountalongtraditionofdebateaboutthenatureofindigenous
society.Rejectingtheusualideathatthequestion–wheretolocatethedominantpower–
atthecentreortheunits–wasdecidedbyareboundfromthegrimexperienceofstate
failureduringpartition,Khoslatakesusthroughthedeepbackgroundofpriorargumen-
tationagainstwhichthedecisionforacentralizedstatewasadopted.Hecarefullyuntan-
glesforustheargumentsofthepurvapaksa–agraspofwhichalonemakesthepaksa–
the present argument – intelligible. Khosla attentively follows the elaboration of two
argumentswhichsawdemocracyasacentreingofpoliticalpowerinthevillage–residing
closetothepeople.ColonialismplacedtheunanswerablesovereignpowerattheCentre,
at a great distance from ordinary people. Negation of colonial dominance, it was held,
should mean weakening the central authority, and returning power back to the villages
–wherepeoplelived.Democracy,itwasplausiblyargued,wasidenticalwithdecentrali-
zation. Of thetwo versions ofthis argument, themore familiar came from Gandhi, but
Khosla analyses the more intricate ‘pluralist’ argument from authors like Radhakamal
Mukherjee. He also dissects the trajectory of the counter-argument – again advanced
by Nehru and Ambedkar – that rejected Gandhi’s view that liberal modernity would
beEnglishrulewithouttheEnglishman,andcancellationofcolonialismmeantrevivifi-
cationofthevillage-centeredpoliticallife ofthepast. Drawingthecaseforindustrializ-
ation as a cure for India’s poverty from the writings of the thoughtful industrialist, M
Visvesvaraiya, Khosla demonstrates how the modernists persuasively showed that the
argument for decentralization as democracy was a meretricious advocacy for perpetu-
ation of local power – entirely unlikely to eradicate the domination of the twin evils of
caste and zamindari, two institutions that obstructed democracy in separate ways.
True political democracy required the force of the state to be located at the Center –
where it could not be usurped in tiny fragments by local magnates. Decentralization
was a deceptive ideal – in the name of being close to the soil, it would hand power
over to those who were the most intimate oppressors of the ordinary people. It was
onlyadistantcentralgovernment,unconstrainedbylocalpower,butanimatedbymod-
ernist ideals, that could alter the character of India’s village life.
Thethirdlargeargumentofthebookturnstoanotherfundamentalconcernofdemo-
cratic theory – on the question of the relation between identity and representation –
which, in the Indian setting, must be asked at two levels. Khosla analyses the question
itself with great clarity and answers it with care and sophistication. In the European
context, theorists debated and scrutinized the deficiencies of majority rule in great
detail. But the majority is, in the main, a decisional majority – ie, a majority produced
by the demand for a decision regarding some specific question over which political
groups disagree. We could call that a question-based majority. The evil of tyranny that
Tocqueville and Mill worry about is principally of this kind, unopposed dominance of
a decisional majority, not a majority based on identity – which will obviously function
in an entirely different way. When discussions on democratic procedure began in
India, in the early decades of the twentieth century, by a sleight of hand, the ‘majority’
that caused concern, and the minority status that was dreaded, are not based on
decisions, but on identity. Decisional majorities constantly change. Identity majorities
GLOBALINTELLECTUALHISTORY 7
areunchangeable,permanentlyentrachedinthesociety’sessentialstructure.Itisstrange
that Indian political thinkers in the early decades of the twentieth century do not ask a
clear question about this substitution: and academic commentators also do not ask
why these thinkers did not ask that question.
WhydoIndianthinkersnotevennoticethissubstitution,letalonequestionit?Along
tradition of Orientalist history stood behind this substitution, but also the history of
Western modernity itself. In his third chapter Khosla offers an excellent fine-grained
history of these debates. He shows how the discussion of representation from the start
uses a territorial frame, and how this results in the parallel growth of two views which
thinkofthe‘nation’asasinglehomogeneouspeople–thestrandofHindunationalism
inSavarkarandofMuslimnationalisminIqbalandJinnah.Thesearefiercelyopposedin
their political designs, but united in their underlying conception of what a nation is.
FramersoftheconstitutionhadtodirecttheconstitutionawayfromthisEuropeancon-
ception of national identity, and replace it with a conception far more complex, and
withoutprcedent.Thefinalpartofthechapteroffersanexcellentaccountofthereason-
ing behind the different solutions the constitution proposed for religious identity and
caste identity. Khosla provides the clearest exposition of the theoretical reasoning
behind this remarkable difference – why the constitution treats religious identity
without giving it reservation, or affirmative action advantages, but does to castes. Reli-
gious identities were not meant to be liquidated, but kept from meddling in public
life. Caste identities, by contrast, were to be ideally annihilated. In Nehru’s view the
‘so-called’ Hindu-Muslim problem is not a real problem6, while that of caste is the
most profound. Ambedkar’s views on partition and the religious question are quite
different,buttheycontainacuteunderstandingofthejuridicalimplications.‘Ambedkar’s
writingsareworthinvestigating’,Khoslaargues,‘becausehewasamongthefirstthinkers
to theorize about the possibilities and limitations of group representation under demo-
craticconditions.’7Atthesametime,Ambedkarandtheframersseegroupidentityasa
complex phenomenon – the dogma of pre-destination ‘prevented people from being
themselves’.8 The task the constitution placed before itself was ‘the individualization of
identity’-whichwasthepreconditionofasuccessfuloperationofaliberalconstitutional
order.The‘destiny’ofthecitizenwastobecomehimself,adestinyblockedbystructures
of caste, and pressure of dominant groups and interests. Khosla explains carefully and
clearly how the reservations based on caste were to remove obstacles on the way of
people from lower orders ‘becoming individuals’. This subtle, but crucial connection
between the imaginary of individualism and the legal provisions for reservation is
rarely explained with such clarity.
KhoslaisrightinclaimingthatIndia’sconstitutional foundingisimportant,because
if democracy is to expand in the world, new attempts at democratic beginnings would
face conditions similar to India’s, not to either the present circumstances of Western
democracies, or at the time of their origin. They will have to resolve similar historical
questionswithsimilarexercisesintheoreticaldeliberationshapingtheirchoicesregard-
ing juridical design. Khosla’s remarkably complex, but admirably clear account reveals
the historical evolution of ideas, the theoretical elaboration of arguments, and the
patient fabrication of juridical procedures which made this remarkable construction
possible.
8 S.KAVIRAJ
Notes
1. Uday Singh Mehta, “Constitutionalism.” In Niraja Gopal Jayal and Pratap Bhanu Mehta
(eds),TheOxfordCompaniontoPoliticsinIndia,OUP,Delhi,2010.
2. ThoughthepoliticalpracticeofbothGandhiansandLeftistsshowedthattheytookliberal
juridicality–freedomofspeechandassociationforcitizens,andrestraintsonthestate-for
granted.
3. JohnDunn,BreakingDemocracy’sSpell,YaleUniversityPress,NewHaven,2014,quotedin
Khosla,18.
4. Khosla,19.
5. Ibid,28.
6. Ibid,121.
7. Ibid,142.
8. Ibid,143.
Disclosure statement
Nopotentialconflictofinterestwasreportedbytheauthor(s).
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Khosla, Madhav. India’s Founding Moment: The Constitution of a Most Surprising Democracy.
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Mehta,UdaySingh.“Constitutionalism.”InTheOxfordCompaniontoPoliticsinIndia,editedby
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