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Prof Upendra Baxi interviews Madhav Khosla, on his new book, India’s Founding Moment: The Constitution of a Most Surprising Democracy.
Upendra Baxi, former Vice-Chancellor of the University of Delhi and Emeritus Professor at the University of Warwick, is one of India’s most important legal scholars. His many books include The Crisis of the Indian Legal System (1982); Towards a Sociology of Indian Law (1986); and The Future of Human Rights (2008). In the following exchange, he interviews Madhav Khosla, who teaches law and politics at Ashoka University and Columbia Law School, on his new book, India’s Founding Moment: The Constitution of a Most Surprising Democracy (2020).
Upendra Baxi: Let me say at the outset that I learnt a lot from your fascinating work. I was not aware of the ways in which Carl Schmitt commented on the Constitution or the delightful observations that Dr. Ambedkar made on Jeremy Bentham’s aborted endeavours to write constitutions for Latin American societies! You present a superb discussion of legal centralists and pluralists and suggest ways in which there was more shared understanding with Ambedkar and Nehru than with Gandhi and Ambedkar.
It helped to me also to further address the magnificent paradox:
But you also seem to suggest that those who claim to know its ‘founding’ moment do not seem to grasp its overall ‘design’. You say, for example, that among ‘scholars of the period, the constitutional founding itself has provoked hardly any curiosity’ offering the example of the adoption of universal suffrage. But then what we may say about the dialectics of enfranchisement and disenfranchisement ever present in the Constitution as put to work? Adult suffrage means the right to contest and the right to vote. The system of legislative reservations, renewed every ten years, imposes restrictions on right to contest and has been held as constitutional. Parliament and state legislatures can impose disqualifications on offering oneself as a candidate. These may even include minimum educational qualifications or for not building a toilet for the family. Rajya Sabha Members need not be domiciliary of the state and may have no connection with it. How may be a totally contingent phenomenon be regarded as foundational?
Madhav Khosla: I should begin by thanking you for your careful reading of the book. Your observation is entirely right. Questions about the meaning of adult suffrage have been a major theme in Indian constitutional practice, and I think that we might say two things about the way in which the theme has played out. First, I think that this isn’t surprising. In all modern constitutional democracies, there are important and contentious debates around the rules that govern political representation, and India is no exception to this as a general matter. Secondly, one striking feature of our doctrine on voting and related matters is the lack of faith that it displays in democratic practices. In a way, one might say that India’s founders had more faith in the people than the leaders and officials that have governed after independence. The Supreme Court, for example, does not even recognize the right to vote as a constitutional right! The claim that I make, about India’s adoption of universal suffrage, is not to deny that there has been an inevitable dialectic of enfranchisement and disenfranchisement after the founding, but merely to suggest that the adoption was nonetheless radical for the time and circumstances under which it was made, and that the dialectic that we would have encountered with a different set of founding decisions may well have been different.
Upendra Baxi: As a student of legal semiotics, I very much like the theoretical frame you provide for the term ‘codification’ which consists in providing just a technical jural meaning but also the wherewithal for the construction of social meaning. You are also right in averring that ‘the Constitution created a space for the creation of an inter-subjective social meaning for the ‘creation of rules focused on enabling actors to form an understanding of the actions that they were performing’. You also say with righteous conviction that ‘the more pressing question is how they might arrive at such legislatures and courts’ and the ‘primary task, in situations like India’s founding, is to establish the apparatus that can make the debate over legitimacy even possible’. You further illustrate all this by drawing a rather sharp distinction between legal and political constitutionalists.
It may be helpful for the readers if in rearticulating this distinction you were to proceed to illuminate us with whether it is one of degree rather than kind and whether you would extend it to constitution-makers themselves. It may also be worthwhile to demonstrate how social meaning is fostered by judicial review – whether by plurality of judicial opinions or situations of dissent speaking to the future interpretive tasks?
Madhav Khosla: My sense is that, as is the case generally, it is a distinction of degree which, after a certain stage, becomes a difference of kind. The way in which we understand the distinction would depend a bit on the level of generality at which we are working. Judicial review, as you rightly observe, is crucial – I think – to the shaping of public opinion and to the creation of social meaning. Courts are fundamentally reason-giving institutions, and they are meant to reason in particular ways. As we all know, any interpretive enterprise is bound to involve the fostering of meaning, and given that courts are the principal public institution involved in the task of legal interpretation, how they interpret words in a legal document – concepts and values and rights and goals – shape and order the meaning of those words. Your thought about plural opinions and dissenting ones implicates a further matter, namely the institutional dynamics that govern how decisions are delivered. Given those dynamics and the rules that shape what counts as the binding legal verdict – rules for determining the ratio in a case, for example – not all acts of legal interpretation will shape social meaning in the same way or to the same degree.
Upendra Baxi: I find riveting your analysis on the history of the idea of representation and how the constitution-makers chose the conception of political agency that relied exclusively on ‘one’s political identity’ being ‘self-created’. Identity as ‘reflecting a predetermined composition of society’ was then replaced by the identity of a constitutionally sincere citizen. Not resting here, you have maintained that ‘reserved quotas for the lower castes were determined by concerns pertaining to democracy, and should be understood as falling under the same normative umbrella as the rejection of communal representation’. The argument is that without this devise the ‘concern was that upper-caste groups’ power over lower-caste groups could infiltrate democratic politics’. And you conclude that ‘the hope that was the Constitution would liberate individuals and allow them to participate in politics as free and equal persons’.
I agree with much of what you have said. But the virtual defeat of creamy layer rationale suggests that the hope is still a distant dream and some Dalit thinkers and activists have recently even petitioned the Supreme Court in effect for examination of the very logic of quota. What would your position be in this extremely sensitive and vibrant politics of equality
Madhav Khosla: You’re entirely right that, for a great many people and groups, the founding hope remains a distant dream. The causal story here is doubtless a complex matter, but I do believe that the post-independence constitutional politics of equality captures how far we have come from the founding vision. As I try to show, the founding vision had a certain coherence to it. The treatment accorded to individuals and groups had a logic to it; and that logic enabled the treatment to be justified to those who were included and excluded, and it had a relationship to the overall vision of eradicating caste. Over time, however, we have moved from a constitutional politics that aims to annihilate caste to one that aims at power-sharing schemes among different caste groups. We see this in the way in which reservations have unfolded. (Just see, for example, the nature of the amendments to Article 16 of the Constitution.) The most striking feature about this reality has been how closely it mirrors the colonial mindset – in both instances, the culturally essentialist assumption is that caste is permanent and here to stay, so the goals is that rather than trying to remove caste-based identification, we should try to balance it.
Upendra Baxi: You conclude the book perhaps by announcing a new one: ‘The global unravelling of constitutional democracy risks feeding nicely into the political ontology of the age of colonialism, where individual actors are defined in specific ways and they are somewhat condemned to the terms of their shared existence. Such a narrative would be not only tragic but also perilous. For freedom, whether at the end of the British empire or now, has been endangered not only by extremism but perhaps even more so by cynicism’.
While many of us will say that ‘democratization of disempowerment’ (to use the phrase of the Nigerian political philosopher Claude Ake) proceeds by cynical acts of ‘trivializing democracy’ (and judicial review), authoritarian constitutionalism is usually a result of forms of politics of top-down extremism and cynicism. Should pacific global resistance then consist in combating cynicism and trivialization of the constitution and judicial review powers? If so, how?
Madhav Khosla: I think the short answer is that we must certainly resist such cynicism and trivialization, but I’m not sure that the recovery of public institutions – of traditional constitutional modes of governance and order – can occur in any way except through politics itself. It is ultimately some kind of new political ideology that will have to express faith in such institutions and set the standard. There is no answer outside of politics. Whether and when that is likely to happen, both in India and elsewhere, remains to be seen, but if the Indian founding provides instruction on any point, it is that politics can be a generative force; that it can, in the modern world, give us the chance to reshape our lives and our condition.