Aug 20, 2020

Ideas of India: Constitutional Democracy

Shruti Rajagopalan talks with Madhav Khosla about the framing of the Indian Constitution
Shruti Rajagopalan Senior Research Fellow, Indian Political Economy and Emergent Ventures India, Madhav Khosla
Ideas of India

Host Shruti Rajagopalan examines the academic ideas that can propel India forward. You can subscribe to the podcast on Apple, Spotify, Google, and most other podcast apps.

Ideas of India is a new podcast in which Mercatus Senior Research Fellow Shruti Rajagopalan examines the academic ideas that can propel India forward. You can subscribe to the podcast on AppleSpotifyGoogleOvercast, Stitcher, or the podcast app of your choice.

In this episode, Shruti spoke with Madhav Khosla about his new book, India’s Founding Moment: The Constitution of a Most Surprising Democracy. Khosla is the Dr. B. R. Ambedkar Visiting Associate Professor of Indian Constitutional Law at Columbia Law School. He is also an associate professor of political science at Ashoka University. His research interests include public law and political theory, especially the theory and practice of constitutionalism. This transcript has been slightly edited for clarity.

Read the full transcript:

SHRUTI RAJAGOPALAN: Welcome to Ideas of India, a podcast where we examine academic thinking that can propel India forward. My name is Shruti Rajagopalan. Today, my guest is Madhav Khosla, associate professor of political science at Ashoka University and the Ambedkar Visiting Associate Professor at Columbia Law School. His latest book, India’s Founding Moment: The Constitution of a Most Surprising Democracy, details the main ideas or traditions of thought that informed the Indian constitutional project and discusses how the framing of the Constitution changed India’s trajectory.

In his book, Madhav talks about the decision of the framers to have a very long and codified Constitution as a pedagogical project. He argues that the framers centralized power to fight localism and parochialism. And we spoke about the framers’ idea of representation in a society fragmented by religion and caste, with the backdrop of Partition, and the relevance of those choices today.

I had a chance to talk about these themes, the link between India’s founding and its constitutional troubles today, the framers of the Constitution, Madhav’s intellectual influences, and much more. This conversation was recorded in person in February, before the COVID pandemic. But Madhav’s book on the founding is unlikely to lose its relevance anytime soon.

Madhav, thank you for coming on the show.

MADHAV KHOSLA: Thanks so much for having me, Shruti. It’s great to be here.

Interest in India’s Founding Moment

RAJAGOPALAN: I know you have a broad interest in the Constitution. How did you narrow it down to India’s founding moment? What was special about that chapter of the Indian Constitution that got you interested in it and made you think about it for years on end, which has eventually culminated in the book?

KHOSLA: I think, Shruti, part of it was I read Granville Austin’s first book, the 1966 book, Cornerstone. A lot of us have read that. It’s a superb treatment of the political dynamics and the political history of the event. But I was always puzzled by the fact that, look, why is there no other book? Granville Austin is doing an excellent job of actually telling us what happens at the level, literally, of why are certain amendments chosen? Why are certain decisions made? Who are the characters?

I became really curious to know, why aren’t there other things left to be told? Now, it doesn’t follow that there are. Sometimes the road is less traveled for a reason, and maybe there’s no other book on India’s constitutional founding because there’s no reason for another book. It’s actually not that important anyway.

The interesting thing is that I think a lot of people feel that way. We’ve internalized a huge amount of historical scholarship which says, for example, that the Constitution is just a copy of the 1935 Government of India Act, or that the real site of revolution isn’t the domain of the political but is agrarian revolts or economic class struggles. So the Constitution isn’t that significant.

What encouraged me to pause and rethink that received wisdom was actually a lot of Western political theory. A lot of 19th-century Western political thought basically made the claim that India was unfit for democracy. A huge amount of contemporary Indian writing has been focused on, even obsessed with, India’s surprising presence as a democracy.

Then I began to ask, “Look, what were they thinking about? Nehru, Ambedkar, Gandhi—what are they thinking about democratization?” That seems to be what’s special about the constitutional moment.

Individual versus Group Identity

RAJAGOPALAN: As you already referred to, your book is not a list of chronological events or a laundry list of who said what, which are all very important details. But your book, in one sense, abstracts away from those details and tries to think of the big themes, traditions of thought that the framers debated. And then they came to certain conclusions.

I want to start with the last one that you refer to first, which is the question of identity and representation. You’ve thought about identity and representation from the point of view of one communal identity, which was really discussed about minority and majority religions, and the second on caste. Now, what do you think about that when you look at present-day India? At the moment of the framing, the framers rejected separate electorates because your argument is that they valued individual identity above the communal identity.

KHOSLA: They also rejected weightage and reservations based on religion. It’s not just separate electorates. It’s any kind of identification.

RAJAGOPALAN: Absolutely, the identification of the individual as opposed to the group identity, to put it more broadly. Today, it seems like there is a major rejection of that. The way we think about illegal immigration, the way we think about citizenship. And no matter how big or small the voices going towards a particular kind of majoritarianism, it feels like group identity seems to be extremely important.

Do you think we’ve failed at the individual identity being valued above group identity—that’s just not the kind of people Indians are democratically? Or do you think this is just one more step in the long arc of history? What are your thoughts on that?

KHOSLA: The first thing to say is that you’re absolutely right, that we are witnessing a profound transition from the founding vision to the current place that we are in. I think the way to understand that transition is that, at the founding—like you just said—citizenship is unmediated by identity. It’s unmediated by religious difference. And, Shruti, it’s not only the debates that are discussed in the Constitution that capture that, and the fact that there are no separate electorates or weightage or reservations. It’s the text itself.

If you see Article 5, it gives you citizenship by birth. If you see Articles 6 and 7, they’re very interesting provisions because they deal with people who are either coming to India or who’ve left India and are coming back. Both those provisions are dealing with Partition. But neither of those provisions mention any religion, right?

RAJAGOPALAN: Yes.

KHOSLA: And so that’s . . . Article 6, actually, is an intensely debated provision in the Constituent Assembly. And the response is that, look, some people say, “This is obviously about Muslims who’ve gone, and they’ve come back. Why should we let them?” The provision doesn’t even mention religion.

I think Niraja Jayal has captured this more powerfully than anybody else. You’ve seen in the last few years a transition from that to actually identifying religion with citizenship in two separate ways.

One, the minute you see illegal migrants, you actually see them as terrorists. A classic example of that is the judgment of the Supreme Court in 2005 that strikes down the IMDT [Illegal Migrants (Determination by Tribunals)] Act. If you see the judgment, it’s laced with all kinds of communal hues, where there’s a direct appreciation and acceptance of the governor’s report and about how this is actually causing insurgency.

On the other hand, if you see amendments to the Citizenship Act in 2004 and you see the current CAA, you realize that, look, if you’re a Hindu who’s entering, then the danger is not insurgency, but you’re persecuted. So you can see how radical that departure is from Article 6 or 7 in the Constitution, where you’re not really seeing people actually being of a certain type.

RAJAGOPALAN: Which is actually quite strange because Articles 5, 6, and 7 were hatched exactly in the peak moments of Partition, and how terrible that experience was, how both sides were butchered. And yet the framers managed to get emotional distance and claim that they would uphold the values of pluralism, liberalism, above whatever is happening at that moment politically. They’re able to have that separation in a way that we haven’t achieved, say, in the last 20 years.

KHOSLA: Absolutely, so it’s interesting, if there was one moment for you to be communal, that’s it. You would have so many circumstances that could have made a narrative possible, and you’re not. But I think what’s interesting, Shruti, is that that’s also the moment where you realize the failure of being communal.

Part of what I discuss in the book is what’s interesting about Partition as a philosophical matter. One of the questions you may ask is, look, Partition is obviously a horrific event in terms of the loss of life and livelihood, and it’s an administrative nightmare. But what are its theoretical, philosophical consequences? What is its place in India’s intellectual history? I think part of the answer to that is, Partition throws into sharp relief the fact that you actually can’t run a sustainable politics on identity.

So one of the things I discuss in the book is, look, Partition comes out of 40 years—basically since 1909—of trying to resolve the identity question through, actually, some kind of accommodation between groups. You realize whichever way you cut it, you’re going to make somebody unhappy. Partition is a constitutional failure. And so then they arrive at this position where they say, “Look, we’re going to need a new model of representation if you actually want to run a country.”

RAJAGOPALAN: I think they were also more farsighted in the sense that they realized that today the problem is the division between Hindus and Muslims, and tomorrow it could be a linguistic fractionalization or a caste fractionalization or something else. But they had already witnessed the culmination of what happens when you have 40 years of separate electorates or divisive politics. Somehow, they manage to rise above, and they learn from that, right?

KHOSLA: Absolutely.

Caste

RAJAGOPALAN: That’s one crucial moment of India’s founding. Now, on the other hand, there’s the question of caste. I feel like the choices made by the framers have gone terribly awry if you look at the last 70 years. They rejected any kind of communal representation in terms of identity. They prized the individual identity above that. But when it came to caste, certain concessions had to be made. Originally, it was in the form of reservations within the constitutional structure.

I feel like two things have happened because of it. One is we have constitutionalized caste identity. Instead of a process of reservations over seven decades making people lose their caste identity, we’ve actually created a system where it is strengthened because a lot of the benefits for certain groups are linked to that.

Second, we have more and more groups—especially those who are not historically oppressed or backward groups—now clamoring for the same benefits. In fact, after the 103rd Amendment, you see a huge shift of delinking caste identity, making it about social and economic backwardness—which covers most of India based on the way they have defined that clause.

Now you have a perverse result where, historically, people who were the oppressors are now clumped together in representation in terms of reservation with the groups that they themselves oppressed. I think conceiving that system has turned out to be, in modern times, a bit of a failure.

KHOSLA: I couldn’t agree more. I think Sudipta Kaviraj put this well, where at one point, he wrote that “Look, you’ve moved from a vision where you try to achieve equality by transcending caste to a vision where you attempt equality through caste.” So suddenly, you have to articulate it through your caste identity.

I think one of the things that you could ask about the constitutional founding is, why was caste treated differently to religion? There are two or three things that can be said about that. First, I think there’s actually very little clarity on how it was treated differently. I spent a lot of my energy in the book saying that, actually, it was more about abstraction towards a group that is discriminated and excluded rather than just some point about difference.

In the case of religious identity, you actually want to accommodate. In the case of caste, you want to annihilate. The whole purpose of abstraction into the idea that it has to be a group that is in some way backward allows you to make sure that caste is the consequence of that arrangement. It’s not the object of it, right?

We moved away from that completely. It’s like we are identifying, now, caste in and of itself. We’ve almost essentialized that identity.

RAJAGOPALAN: Yes, and this we did through a series of moments, but the big moment is when Other Backward Class, or OBC, reservations got tagged onto it. This is the Mandal moment. Now, the new moment, which is the 103rd Amendment, which is bringing in traditionally upper castes, but now bringing them through a backdoor of social and economic backwardness.

The idea of backwardness keeps expanding. And as you rightly put it, originally, they use the word backward in terms of, they were historically oppressed, couldn’t participate in democracy the way one would want all groups equally to participate in democracy. Now we are participating in democracy through caste, right?

KHOSLA: Absolutely. Now you’ve reached a situation where you’ve completely severed the relationship between backwardness, or you’ve jettisoned any understanding of actually what is the logic in different sectors. You’ve completely done away with what is the logic at different levels in the same sector.

So, on each of these fronts, the caste policy is very hard to accommodate within . . . the reservations policy is very hard to accommodate within any vision of equality because part of the purpose of any equality doctrine is to explain why certain people are included and why certain people are excluded. Because it has to be justifiable to both groups, and this policy can’t do that anymore.

RAJAGOPALAN: Do you see a way forward out of this conundrum which doesn’t involve a major rewriting of the Constitution? Or you think we just need to chug along and develop equal opportunity in different ways than what is the constitutional arrangement?

KHOSLA: I think, Shruti, in this—like in so much else—any way forward will only rest on a capacity for some new kind of politics. The court is not going to do anything; it hasn’t. It’s allowed every kind of amendment through, and where it hasn’t, it’s been actually overturned through a subsequent amendment. You’re going to need some new kind of political vision that’s able to take this on. Now, whether that comes about or not is anybody’s guess. But I think that, like so much relating to the Constitution, the shape that it takes will rest on things outside the document.

Centralization

RAJAGOPALAN: Going back to Nehruvian liberalism, I want to pick up on the theme of centralization, which is in your book. The way you set it up is, the framers shunned this kind parochial localism, which was partly princely states and monarchies with their own local traditions. One part of it was shunning village republics, which are also cesspools of caste entanglements and oppression. Centralization not just meant centralization of power, but it also spoke of a particular kind of modernity and industrially developed, economically developed society, and so on and so forth.

Another, slightly less generous way to think about centralization in the constitutional scheme is that the framers wanted to centralize power because they didn’t trust local leaders. It’s trying to hold all the cards in their hands. And you can particularly see this in the fiscal federalism scheme of India, or the lack of fiscal federalism in India.

How true do you think that is? One is, of course, in modern times, it has turned out to be extremely true, but we don’t want to link all modern consequences to the original scheme. But to me, when I read the aspects of centralization, it seems like they really just wanted to hold on to power.

KHOSLA: I want to answer that at two levels. A, I want to answer that at a more abstract level, which is, do people at these moments act according to self-interest? Now, the answer to that obviously must be, in certain ways, yes. I think that the mistake we make isn’t to imagine that people act out of self-interest or selfishly or for power. I think the mistake we make is in thinking that, actually, ideas don’t matter, that the terrain of actual history progresses simply through some kind of ruthless exchange.

There’s a great Tapan Raychaudhuri book review that he wrote years ago in the Historical Journal, critiquing a wide body of scholarship coming out of Cambridge that was presenting the Indian nationalist movement as a struggle of just, “I want power. You want power. This is how it’s working.” It was called “Indian Nationalism as Animal Politics,” or something like that.

I think that we don’t want to collapse into that. I think we’ve done a great disservice to actually thinking, “What are the ways in which people conceive of particular things? What are the ideas that are driving them?” Now, it would be an equal mistake to think that’s the only thing that matters—obviously not. There are many things why something happens.

But I want to put ideas back at the center of the story. Now, I think what’s very important to understand in the centralization story is that it is, at the founding, a contrast between two visions—between a certain vision of the state and a certain vision of society. Rather than see it about whether or not there should be power at this level or that level, you need to see it as being a moment in our country’s creation where every single person is basically governed by a completely different authority.

What the state enables is a common umbrella, and it is the very fact of that umbrella that creates equality because suddenly now we all see each other as being under the same roof. That itself means I see you as a citizen. Now, the problem becomes that if I actually go lower and lower rather than higher and higher, then the fear is that, because the localism and narrow visions of Indian people are so deeply entrenched, then, effectively, they will permeate those state structures at the local level.

The only way to rescue you from localism is actually to make you see each other as a citizen and have a common umbrella. Now, in that sense, the idea of a state—just like the idea of a common set of rules or citizenship unmediated by identity—are all ways to make Indians embrace new forms of knowledge and understanding.

The idea is that you don’t have rules according to democracy. You have other rules, say kinship rules. You don’t see each other as belonging to the same place. You see each other as belonging to X society, Y caste, C family, and so on and so forth. You actually see each other as Hindu, Muslim, whatever. So centralization needs to be seen as a contest between the state and society, which is a very specific historical context at the time.

Socialism and Centralization

RAJAGOPALAN: But even within that—if I may add to your theme of ideas matter—there seems to be one more idea driving the centralization, which is socialism. If you look at the founding of other federations, they of course happen in the case of, say, Switzerland or the United States. The United States was hatched in the context of the peak of classical liberal thought.

They had read Adam Smith. They had read John Locke. Those were the ideas driving them. Even in their setup of the relationship of the citizen with either local authority or centralized authority, their way of escaping localism is through competition and not through centralization.

KHOSLA: Right.

RAJAGOPALAN: Whereas the Indian framers—they did not think too much about market competition. That’s one way of thinking about it . . . or that they believed that the consequences are not ideal. They didn’t like the consequences of the market, and they strongly believed in socialism, which is, frankly, not anachronistic. It was very much the thought, the dominant thought of their times.

Do you think some of this is also, another possible way of shunning localism was voting with your feet and political competition at local levels, which is one possible way of conceptualizing how you exit the worst excesses of localism? They chose another way, which is centralization, which, by the way, also enables a lot of socialist planning.

KHOSLA: Look, could you have shunned localism through a more decentralized framework, through a more federal framework? Perhaps, and a lot of people make that argument. I think the fact that they don’t go for that shows their fear of Indian society. What makes people like Nehru and Ambedkar radical is that they are severely critical of Indian society.

Now, you’re absolutely correct that it ends up being a very socialist, statist document, and three things about that, Shruti. One is, they think that democracy isn’t just about being under a common umbrella, but actually under a certain kind of material substantive outcome that it provides you. For Nehru, the great sin of the colonial state is poverty. It made nobody’s life better.

RAJAGOPALAN: Absolutely.

KHOSLA: So, in part, clearly, they are thinking that democracy is about being under a common umbrella, but it’s also about having a better life. Why do you think that? Why do they think that socialism provides you a better life? Because at that moment, there are only two models that exist for state building. There’s either fascism or there’s communism, and the interesting thing is that they reject both.

I think that today we look at it, and we think, “Oh, it’s really socialist.” But what we all have to realize at that moment is, the people who lose out in the debate on centralization aren’t only the people like Gandhi and Shyama Prasad Mukherjee, or who want perhaps a different kind of vision, or other people who are not centered around village republics but want more power for regional states.

But even the communists—it’s also a rejection of the fact that you cannot short-circuit the path to modernization. I think that that’s a hugely radical step at that moment. Today, we look at it and think, “Oh, they went for socialism.” But at that moment, they’re caught because they’re saying, “Look, the only model that exists for economic transformation is Russia. The only model that exists for civil liberties are these other countries. How do I get both?”

RAJAGOPALAN: The document tries to combine, in some way, the best of all worlds that they can possibly put together.

KHOSLA: Yeah.

RAJAGOPALAN: Which also makes it a very entangled document in the process.

KHOSLA: It makes it challenging. One of the things that Nehru says is, “Look, if we can achieve independence through nonviolence, why can’t we achieve economic growth through nonviolence?” In that sense, I think part of the real tragedy of subsequent constitutional practice is the way in which the enforceability of Directive Principles has worked and how they’ve—through the backdoor—become judicially enforceable. People have supported that and passionately argued for it on the ground that you care about those Directive Principles.

Well, of course, you do, but I think they’ve missed the fact that their enforcement may well come at the cost of civil liberties because you may short-circuit the path to modernization. And you see this perfectly in the Aadhaar judgment. The thing is, the Constitution guarantees us both Fundamental Rights and Directive Principles. The separation exists because you care about means and ends.

RAJAGOPALAN: Aadhaar is the most recent version of it, but I think this has been going on for a long time, this tension between fundamental rights and Directive Principles. And you see the worst of it with things like the consequences of bank nationalization, the 25th Amendment, and then the 42nd Amendment, and then so on.

KHOSLA: Totally.

RAJAGOPALAN: Basically, I still believe Article 31C should just be deleted, forgotten. We should erase our memory that it ever happened and anything that follows. But you’re absolutely right in that we have used the vision of socialism to once again corrupt the tradeoffs or the spectrum of constitutional values, at least in the way it was originally set up in the document.

Now, one of the things you just said a few moments ago is that people like Nehru and Ambedkar also didn’t trust Indian society. This was a battle as much against colonialism as much as it was a battle against the way the Indian society functions. They’re fighting two, three different battles at the same time.

KHOSLA: Absolutely.

RAJAGOPALAN: India is very unique, historically, in that universal adult franchise is introduced right at the beginning. Now it seems like a very obvious choice because India is so vociferously democratic, especially in its elections and voting.

But at the time, it was an odd choice because most constitutions that they referred to at the time of the framing didn’t really have universal adult franchise or anything close to it. In fact, the framers themselves were chosen on a limited mandate. The 1946 provincial elections were not based on universal adult franchise, which is something that was very much on their minds at the time of framing.

Now, it’s a very remarkable and odd choice to give universal adult franchise when you don’t trust your own people. Can you tell us a little bit more about where that came from? As an ideal, it sounds wonderful.

Even at the time, there were a whole number of people who warned against it and said India’s overwhelmingly poor, overwhelmingly illiterate, doesn’t have a long tradition of democracy or democratic participation, and universal adult franchise is a bad idea.

They still went for it. But at the same time, they have this enormous distrust of Indian people, so how do you reconcile that? Where did that come from? It’s a very odd choice in that moment.

KHOSLA: I think the way to think about the choice at that moment is that, of course, they’re critical of Indian society. But what separates their criticism of Indian society to, say, the British imperialist is they think that Indian society, firstly, can change. The second thing that they think is that it can be changed through the practices of democratic politics. It’s not changed through submission to white men.

Basically, for them, it’s actually a self-sustaining politics that will provide the education necessary. It comes out of, above all, Shruti, the ideological vision that the way people are is a consequence of the politics you put them in. You put people in a democratic politics, they will behave democratically. One of the things that we often see in India today is people will say, “Oh, this is what the people want.”

But the truth is that you run a communal politics, you get a communal people. You run a liberal politics, you get a liberal people. There’s a feedback loop both ways because people are protean beings, and part of the idea of modernity is that you can constantly construct and reconstruct your world. India is being reconstructed today. In that sense, it’s being done in furtherance of a very different vision to the founding vision. But it is a modern idea.

RAJAGOPALAN: Yeah, very much so, and I think this aspect of learning by doing, which is . . . they’re both thematically in your book. You already have three big themes emerging, but if I think of the meta-theme that emerges from the book, it is that ideas matter and that, as a people, democracy is neither an ideal nor an end state. It is a process of learning by doing. At various moments in time, you get what you get, but those are snapshots in time of what is the outcome of learning by doing and the ideas that dominate that particular moment.

KHOSLA: Totally, and that’s what it means to self-rule: you’re constantly creating and recreating your world.

Is the First Amendment the Constitution?

RAJAGOPALAN: So, the book ends with the founding moment in a sense. If you want to ascribe a date, it’s 26th January 1950.

KHOSLA: Yeah, part of the hope was that then I don’t need to keep spending my life updating it, so we should write books that are not on the present.

RAJAGOPALAN: Yes, so no other editions of this book in the—

KHOSLA: Yeah, no other editions.

RAJAGOPALAN: Lovely. But there are a few scholars who feel that the First Amendment is really part of the writing of the Constitution because, historically, it was made by the provisional parliament. The provisional parliament was just the Constituent Assembly, which extended itself until the general elections could be conducted.

The First Amendment was a major amendment, and it really fundamentally changes Article 19(1). It changes how we think about exceptions to free speech, to freedom of trade, profession, and occupation. It, of course, is a major amendment to property because of all the Zamindari legislation and litigation.

What is your thought on that—the idea that the framers continued legislating? And do you think that is part of the constitutional document, or we should really treat it as a post-founding moment in that sense?

KHOSLA: I think it depends a little bit on why one is asking the question. If one is asking the question in terms of, are they similar political actors who took decisions at the founding formally, and then in the first few amendments, how do we reconcile their views? Then you could say, look, it’s part of the same process.

If we ask it in a more technical, legal way, I think it’s certainly not the Constitution. It is an amendment. I like to see it as an amendment because I find it interesting to think about it as the Constitution in practice. It’s coming, actually, out of litigation. It’s coming out of specific cases. It’s coming out of specific controversies that are arising under the new Constitution. I think that it’s much more interesting to see it as the Constitution’s first period rather than to actually see it as part of the same Constitution.

Of course, in some sense, these processes are linked, and there’s a certain longer arc of history. But I think that to do that would miss a lot of the interesting case law that leads to the amendments, actually.

Constitutional versus Post-Constitutional Incentives

RAJAGOPALAN: You’re absolutely right. This is in response to Romesh Thapar and calling for a revolution, to Brij Bhushan trying to incite violence in the backdrop of Partition, or the Zamindari litigation and Kameshwar Singh and all the Bihar statutes, the multiparty statutes and things like that. In that sense, I understand thematically it’s different.

You said something interesting that I want to dig into a little bit deeper. You said in the sense of whether it’s the same people who are continuing as political actors. Do you think they act differently in the moment of Constitution framing and while they have to govern?

Because I see the First Amendment as a really surprising move in the sense that our framers, who we put in an idealized and elevated position, their first act post-framing is to remove the constraints that tie the hands of government in terms of the exceptions that are read into our fundamental rights. Do you think they changed the moment they started governing, and they said, “Hey, it’s really hard to govern when our hands are so tightly tied by the Constitution”?

KHOSLA: Part of why we feel that way, Shruti, is because a huge number of restrictions that the state imposes on us today, and a lot of coercive power that the state exercises, does not actually follow from new laws that the state has enacted. That’s true. So you see sedition, you see public order laws, so on and so forth.

But I think that, on the one hand, you could say that captures that nothing new is happening. These laws have existed. I don’t think that that’s quite what it captures. For me, what it captures is, so much of constitutional law and so much of law in general is actually about how you apply it. What’s interesting isn’t that the First Amendment gives the state some more power because it adds certain more explicit restrictions in Article 19.

I think what’s interesting to ask is, how many restrictions are actually imposed in terms of constitutional practice during those years? What does that mean for how the state is conceptualizing those rights? I think that, in some way, you’re going to have any law that can be abused, and you’re going to have any law that can be applied in a way that you would imagine doesn’t actually follow from the way in which it was intended.

Now, is that the fault of the law? I’m not quite sure. I think that it really captures how constitutional law is really forged in its application. One of the things that I’ve tried to underline in the book is that I don’t think that one should read the limitations in Article 19 as being indicative of an excessively restrictive approach to rights, because one of the things about those limitations are that the founders are saying, look, every constitution has limitations.

We are actually in a situation where you have certain executive limitations. Why not put them in and provide clarity because we are providing meaning to the right. We’re not limiting it in any way that other people are not. Even America has it limited, which is a major free-speech jurisdiction.

As a result of that, what you’re also doing is, you’re limiting the limitations. You’re saying that you can only limit it on these many grounds, and I think India’s best free-speech cases, the limitations or the restrictions have worked in that way. Now, there’ve been few cases, but they have existed.

I’m not a fan of the First Amendment at all, but I think that a lot of our attack on it is exaggerated because of how things have subsequently worked out. It’s a little bit like a version of what . . . Ram Guha has this fabulous line where he says that our criticism of Nehru is a reverse of the famous biblical adage, where you’re taking the sins of subsequent generations and putting them on earlier ones.

I think it’s similar with the First Amendment. You’re seeing the way in which constitutional law was sacrificed and destroyed in practice by the political elite and the judiciary. Then you’re blaming the law in its original conception.

Amendment Procedure

RAJAGOPALAN: Yes and no, and I’ll tell you why I think there are some original sins here. I think the first one is the amendment clause. You discuss it a little bit right at the end of the book, and you, like every other person who has studied the Indian Constitution, allude to the fact that it’s remarkably easy to amend compared to other constitutions, especially when you compare it to the American Constitution.

The Indian framers wanted a middle path. They didn’t want it to be amended by simple legislation the way you would have with the British system. They also didn’t want an extremely rigid document like the American system. It’s relatively easy to amend, which is also witnessed in the fact that we have 100-plus amendments.

Now, one question that comes out of this is, on the one hand, they really care about codification because they want an enormous amount of clarity on what the text means. They want a shared understanding.

They’re very skeptical, as you point out in the early part of your book, about future governments executing their vision about the judiciary and understanding the implications of the constitutional text, about other political actors—such as state government actors, local government actors—understanding the text. There’s this suspicion which makes them want to create a shared understanding by textualizing and, some would say, over-codifying everything.

But on the other hand, they make it remarkably easy to amend the Constitution, which shows that they’re not that worried that it’s going to be changed or abused in the future. I find this a very odd contradiction. It seems like two completely different groups of people hatch this, right?

KHOSLA: Interesting. I read it completely in the opposite way. I see it as, actually, perfectly consistent because it shows that they’re democrats. In the ultimate analysis, it’s the amendment process that captures the same impulse that grants suffrage at once.

One of the things that you could otherwise say is, look, these people are actually trying to create Indians without the consent of Indians in some dramatic way. Their answer is no, we’re going to give you the vote immediately, and you change the Constitution. We just think this is the process that you should. Otherwise, it’s no different to imperialism.

RAJAGOPALAN: Then why the enormous deliberation, over three and a half years, thousands of amendments, hours and hours spent in Parliament debating the details? When you read the constitutional exercises—you have done probably more than anyone else in our generation—just the massive amount of deliberation that went into it is extraordinary.

KHOSLA: But exactly for that reason—because you’re giving people the vision, and then you’re saying, “You do with it what you want.”

RAJAGOPALAN: And you don’t think that is, in some sense, a slightly odd constitutional project in the original idea that constitutional texts, at some level, also have to limit government actors and constrain governments in the worst political exigencies, when they are most likely to act out contrary to democratic values and republican values?

KHOSLA: I think it shows a deep faith in the people. It’s the same faith, ultimately. They genuinely believe that the way that Indians are is actually a construction of the political apparatus that they’ve been put in. So they think that if you have a certain external commitment to the Constitution and you put them in a certain kind of political apparatus, then people will behave in a liberal, democratic way.

Now, the way also, Shruti, to think about your question, is look at the alternative. The point is that, if you’re not actually committed to a certain kind of constitutional vision, no constitution can save you. You can have as rigid an amendment procedure as you want. Nobody is going to follow it. The point is that at some level . . .

I sometimes get asked the question, “Oh, is India’s current situation the fault of the Constitution?” The question is a kind of a category mistake because the Constitution can’t do anything about whether or not there’s an external commitment to the Constitution.

The analogy I sometimes use is that you’ve been given a refrigerator that can cool food. Now, you choose not to plug it in. Are you going to blame the refrigerator? So, the thought is that you do need that external device, and I think that they think that if you’re not externally committed to it anywhere, then, actually, what is a different amendment procedure going to achieve?

RAJAGOPALAN: If I follow what you’re saying logically to current times, all the 100-plus amendments that we’ve had, in one sense, wouldn’t disappoint the framers because almost all of them—except, say, the 42nd Amendment, which was this bizarre moment in Indian history—most of our constitutional amendments have been very much a will of the people. They have been passed in Parliament.

When it comes to questions of federalism, separation of powers, they’ve also been ratified by the states. It’s all the things that people wanted. There has been no corruption in the process of sneaking things into the constitutional scheme because it has been democratically voted in, and then that is where we are. Would you think that’s a reasonable position?

KHOSLA: No, I think it’s true and false. I think it’s true in the sense that constitutionalism is partly a set of practices, and it’s partly about resolving issues, differences, concerns, controversies through certain means. In that respect, I think they would be happy.

But I think that they also have a specific constitutional vision, and I think, in that respect, they would be deeply disappointed because a huge number of our constitutional amendments actually depart from that vision. One example is exactly what you said, that you moved from a constitution that aims to transcend caste to one that actually—

RAJAGOPALAN: Entrenches it in the Constitution.

KHOSLA: —entrenches it and creates a power-sharing document between different caste groups. That’s just one example, but I think that they would be happy with the fact that it’s happened through constitutional means. I think that they would have a number of misgivings about the substantive character of the amendments themselves. Of course, this is a different point, but you can also be very unhappy about how it’s playing out in practice.

Democracy versus Constitutionalism

RAJAGOPALAN: Now, this also brings up the question of how much we’ve succeeded as a democracy versus constitutionalism. One of my favorite parts of your book is this idea about how the constitutional framing was also a pedagogical exercise. India had no experience with democracy or constitutionalism, and suddenly there is universal adult franchise, which is given from the very first moment.

A very big thought that went into the framing of the Constitution is, how do we all have a shared understanding of what it means to be a constitutional democracy? One part of it is just voting, but the other part of it is all the political processes that go with it.

My sense is that India is a phenomenal success if we think of it as a democracy, and much more of a limited success if you think of it as a constitutional democracy. Because Indians are very, very enthusiastic when it comes to voting. Our voter turnouts are very high compared to the rest of the world.

Our elections are actually quite a lovely spectacle to watch. The relationship between those who are electing and those who are elected is a very interesting relationship in India—just how quickly we replace them and how leaders have a moment. If they don’t deliver, they must leave.

But as a constitutional democracy, I think we haven’t been as successful because—like some of the things that we discussed in terms of amendments, or how poor the judiciary has been in preserving constitutional values, or how hasty Parliament has been in getting rid of constitutional constraints—we just haven’t done quite as good a job. Do you think that’s a reasonable assessment of where we are?

KHOSLA: I think that there’s something to be said for that, which is—just to put the point very simply—India does elections better than it does rule of law.

RAJAGOPALAN: Yes.

KHOSLA: But I think that that story doesn’t mean that you’re actually doing well as a democracy and bad as a constitutional democracy for the following reason. I actually think that we need to interrogate what it means to be a democracy much more fully. Part of what’s interesting about the constitutional vision is that they think that it’s actually not sufficient for a democracy to just do elections right. The question you could ask is, why?

The reason is because what a democracy needs to do is, it needs to justify the exercise of coercive power. You need to be able to tell me, why is it, actually, that I should listen to the state? Why does the state have monopoly? Why is it that when the police do something, that’s different to some random person picking up a gun? The reason is because we actually think that it has come through a process where we will all be treated as free and equal beings.

I have a duty to accept it, whether it’s right or wrong, because it’s treating me unequally. In that sense, democracy is not just about the input. It’s also about a certain equal and free society that results in terms of substantive outcomes.

The second thing, Shruti, is that even if you just ask the question of elections only, you get a lot of constitutionalism through the door because you could say, “Okay, if you want elections only, what do you want?” You want every person to vote freely? That means that you need people to actually be able to count the votes. That means that you actually need people to be able to campaign freely. That means that you actually need people to speak freely so that they deliberate freely because deliberation is important to voting.

A lot of what you get in terms of constitutional rules are actually the conditions necessary for expressing sovereignty in the first place.

It’s not all that clear . . . I think, on the face of it, you’re right. You could say, “Okay, you’re doing well democratically but badly constitutionally.” I think you’re doing neither democratically nor constitutionally. I think that’s what the founders thought. If they actually thought that all you needed for a democracy was simply voting, then we wouldn’t have a constitution.

If that’s what self-rule means, then why do you need anything else? Because we are interested in self-rule. The late John Gardner had a great phrase, where he said, “Even popular rule requires rules.”

RAJAGOPALAN: Yes.

KHOSLA: Right? I think that’s the thought here.

Constitutional Pedagogy

RAJAGOPALAN: Then, going back to the pedagogical exercise—we do know how to vote. We know how to campaign. We know what that part of democratic sovereignty means—each person one vote, and things like that.

But we’re not very aware of our constitutional rights. Some of it might just be the document’s very lengthy. We’re not taught it very well in school. It’s not like the American pocketbook Constitution or the Bill of Rights that can be recited in one breath. One part of it is just it’s a bulky document.

KHOSLA: Sure.

RAJAGOPALAN: But the other part of it is, as a nation, we’re not very educated about what our constitutional scheme means and the rights associated with it and so on. Do you think, as a pedagogical exercise, universal adult franchise and all the entanglements between democracy and constitutional rules that followed—that has been an enormous pedagogical success.

But the shared understanding of fundamental rights, of separation of powers, of why judicial review matters, and so on and so forth—we’ve not been anywhere close to as successful on those margins.

KHOSLA: I think that’s correct, and I think the reason for that is because we’ve not applied them nearly as successfully. At the end of the day, people internalize what they see and what they experience. They would internalize a right for the police to protect them if the police would protect them. They would internalize the right of the judiciary to enforce a law against unlawful arrest if the judiciary would enforce that.

If the judiciary doesn’t, then they’re not going to internalize that. I think the pedagogical failure of that has basically been because it has failed in practice. I think, since Nehruvian liberalism, you’ve had neither Nehru nor liberalism, basically.

How to Research the Constitution

RAJAGOPALAN: I have a few questions about what it means to be a researcher of the Indian founding moment. Most people may not know this, but the Indian founding documents are extremely well preserved. All the different memoranda that were circulated—we can find them. There’s also hours and hours of transcripts of the framers debating these matters, minutes of subcommittees and main committees, and so on and so forth.

On an everyday basis, while researching the whole thing, before these themes emerge, what is the process of actually looking at these documents? For you personally, was it frustrating? Was it interesting? Was it all of those things at different points in time?

KHOSLA: I think it was all of those things at different points of time. This book emerged out of a dissertation, and as some of your listeners will know, doing a PhD is a horrifying exercise, and it exposes you to profound emotional and intellectual limitations. In some ways, the debates were very interesting. I think it took me a long time to understand why they actually matter because a lot of them have fascinating speeches, and a lot of them have a lot that isn’t that interesting, frankly.

RAJAGOPALAN: When did you manage to move away from the detail to the abstract? Because that, I think, is a very hard thing to do, given how many members there are, and how many interests there are, and how many details there are in the process of the framing.

KHOSLA: At some point, Shruti, the thing that made that possible was actually working through a lot of Western political theory and thinking about how central the question of self-government and its limitations was to the 19th century—the justifications for empire. I became interested in what’s the Indian answer to that. What is the Indian side to that story?

RAJAGOPALAN: Once you assimilate all the details, you basically ask, you framed a different question—

KHOSLA: Exactly.

RAJAGOPALAN: —and then found the answers.

KHOSLA: And I became puzzled with how nobody had asked that question, which is actually like—

RAJAGOPALAN: That’s true.

KHOSLA: —which is actually the only question that they are asking.

The Prototype Indian Founder

RAJAGOPALAN: Going back to Western political thought, if you think about the American founders, there is a prototype founder—this elite white gentleman who owns a lot of property, maybe even owns slaves, and has read Adam Smith and John Locke and is deeply individualistic and so on and so forth. We have this representative agent of the American founder, whether that’s good or bad, true or false. Do you have a similar representative model of the Indian framer?

KHOSLA: I don’t. I think, in part, what’s interesting about the assembly is that, although it’s voted on a limited franchise, it actually has astonishing ideological diversity. Ambedkar is a very important figure, and he’s a remarkable figure, but he’s one among many. There are many people in the assembly, and from the right to the left, the debates really cover almost any position you could want to have.

RAJAGOPALAN: So it’s hard to come up with a prototype?

KHOSLA: I find that hard in some ways, but also, I’m not looking to create that. It’s just not how I work.

RAJAGOPALAN: Who is your favorite Constituent Assembly Member while reading the documents? And who is the most frustrating?

KHOSLA: Many people are frustrating—that’s a much more challenging question. But I think that what was interesting for me was people who I didn’t expect or I didn’t know that much about—say, somebody like Alladi Krishnaswamy Ayyar is just fascinating. His capacity to pass through legal distinctions and the consequences of legal choices was very surprising. I just didn’t know that much about him, frankly. In that respect, it was really pleasurable to read that.

RAJAGOPALAN: What was the most surprising thing that came up in your research? Something that you didn’t expect, though you’ve been studying this for a long time?

KHOSLA: There are parts of the debate that are pretty funny. I think that there’s a lot of it that is boring. There’s a lot of it that’s interesting. But there are actually parts of it where they’re mocking one another, which is fun.

RAJAGOPALAN: Yeah, they’re having fun the parliamentary way, the way you would expect in a British satirical comedy sometimes.

KHOSLA: Don’t forget that that’s happening while there is civil war outside. So it’s really a remarkable center of reflection and thought and humanity amid a lot of chaos.

Madhav’s Intellectual Journey

RAJAGOPALAN: I’ve known you for a long time, but one of the things I’m really curious about is your intellectual journey. You are a trained lawyer in India, and then you went on to do your doctoral work in political theory. I just want to know how you got there.

KHOSLA: I think part of it had to do with the fact that a lot of us who had the privilege of doing law immediately after school in India realized at some point that the discipline necessarily negotiates a number of other disciplines. If you were interested in public law, then political theory was the natural cognate field that you would want to learn more about.

So I arrived at some understanding that a lot of the most divisive and interesting constitutional questions were questions that implicated some deeper theoretical point. I just didn’t have the training to appreciate that theoretical point, and so it was actually to learn constitutional law better in some way.

The Khosla Production Process

RAJAGOPALAN: Can you think of any teachers who influenced you, or books that led you in this direction, or some other life event, personal event?

KHOSLA: Certainly. I began thinking about people who had been writing on Indian law, moving outside of the careful doctrinal work that we had read. Whether you read people like Upendra Baxi’s work in the ’70s and ’80s—say, his book Supreme Court and Politics on the ’70s—or whether you read somebody like Pratap Bhanu Mehta today, it became clear that these people had understood the law inside out, but they had understood more. So reading them, actually, made me feel that there was much more to be done.

RAJAGOPALAN: In the writing process . . . just a little bit curious about the Khosla production process. Do you write every day? What’s your method? Do you write at the same time?

KHOSLA: To be really honest, it’s a hot mess. It’s completely disorganized. I have no genuine understanding or self-knowledge of actually how it happens. It’s not every day. It’s not at a fixed time, though these are goals I have been aspiring to for many a year. I think it really happens in spurts for me, actually.

RAJAGOPALAN: Do you listen to music while you write?

KHOSLA: I’m almost always listening to music throughout my day.

RAJAGOPALAN: What do you listen to when you write?

KHOSLA: Most of my music is either Western classical music or it’s a genre of what you may call from Leonard Cohen and Simon and Garfunkel to what might be the Milk Carton Kids today. People would say that it’s slightly depressing.

RAJAGOPALAN: Did you have a playlist for when you were writing the book?

KHOSLA: No, I’m always discovering and listening to new music.

RAJAGOPALAN: How much of it is stuff that you play yourself? Because you play the piano.

KHOSLA: Sadly, most of what I play, I’m not that good. Most of what I listen to is quite different.

RAJAGOPALAN: What are you listening to now in the post-book moment?

KHOSLA: It’s literally different every day, Shruti. Music is a huge part of my life. I’m literally listening to it all the time. If I’m not speaking to somebody, I’m listening to music. On average, it would be at least five to six hours a day, and so there’s multiple music that’s coming up and I’m hearing it. I’m always typing and listening to music.

RAJAGOPALAN: Okay, any particular genre that works well for writing?

KHOSLA: No, I think people have very different views on this kind of stuff. I listen to a lot of music on loop, I have to say. I could listen to the same song for three days, which is kind of neurotic, but if you’re doing—

RAJAGOPALAN: I’m a little bit similar.

KHOSLA: —if you’re doing a PhD, you’re already kind of neurotic, so it sort of fits in.

RAJAGOPALAN: Do you get easily distracted from this kind of work? Because it seems, from what I’ve read of your writing and known about you personally, it seems that you have this hyper focus, but are you distracted by Netflix—

KHOSLA: No, no, I’m usually distracted.

RAJAGOPALAN: —and binge-watching and things like that?

KHOSLA: The worst thing is the phone, which I’ve tried to have a healthier relationship to now, and email, and I’m not on Facebook. In that sense, I’ve become a little bit better. But I’m able to do a lot of work in a short amount of time when I’m in the right frame of mind. I’m just rarely in the right frame of mind. I think that’s the problem.

RAJAGOPALAN: I think you’re underselling yourself.

Finally, what was the process like to turn the dissertation into a book? A little bit about the kind of choices you had to make.

KHOSLA: Right. I think what’s difficult is that suddenly you have to think about writing for people who you haven’t been speaking to for the last eight years or six years or something like that. A lot of what I had presumed people would know, they didn’t know. The second is that I wanted it to be scholarly, and I wanted it to be a serious book. But I also wanted to frame it in broader terms.

For me, the biggest challenge is how much to include and how much to exclude. In general, I prefer to underwrite than overwrite. It’s just because I’m lazy, so I spent a lot of time taking two paragraphs and making them three sentences, and just having a reference to one person. If somebody is interested, they can follow up.

RAJAGOPALAN: As a reader, I’m grateful for that kind of hard work and those choices. What are you reading now? And what are you working on now?

KHOSLA: I’m now actually working on a set of things unrelated to India, but I’m trying to do some conceptual work on what it means to make comparisons and comparative constitutional law.

RAJAGOPALAN: Fantastic.

KHOSLA: So something very, very different. A lot of our energy is spent comparing societies and comparing laws and comparing countries, and I’ve become a little bit interested in the philosophy of comparison. I’m just thinking about that, but it’s very preliminary, and it’s not clear where it will go.

RAJAGOPALAN: What are you reading?

KHOSLA: I’m reading Naipaul’s three books on India. That’s what I’ve committed myself to doing for the next few days.

RAJAGOPALAN: Okay, that’s lovely. Thank you so much for your time. This was a pleasure.

KHOSLA: Thank you so much, Shruti.

Image credit: wiki/File:Indian_Constituent_Assembly

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