Book Review: Madhav Khosla. India’s Founding Moment: The Constitution of a Most Surprising Democracy

The Indian Constitution has transformed the theory and practice of constitutionalism. Scholars such as Granville Austin have described the Indian Constitution as a document of social revolution. Kalpana Kannbiran and Upendra Baxi have adopted the framework of ‘insurgent constitutionalism’ and ‘transformative constitutionalism’ to differentiate Indian constitutionalism from the narrow concerns of liberal constitutionalism. Even the Constituent Assembly members such as Ambedkar, Nehru and K. M. Panikkar have emphasized the transformative potential of the Indian Constitution.

This book is rich in the exploration of writings of founding fathers of India, Nehru, Gandhi, Ambedkar and few others as well, though it remains silent on the contribution of founding mothers of India, such as Kamaladevi Chattopadhyay, Vijaya Lakshmi Pandit and Renuka Ray. It also provides an analysis of Constituent Assembly Debates on issues of representation (caste and religion), federalism and decentralization, though in this regard too, the voices of women members of Constituent Assembly remain missing, except for an assertion on page 8 of the book that Hansa Mehta was a notable female voice in the Constituent Assembly. The arguments of the book are illuminating and novel but likely readily understood only by scholars and not by the general public.

One of the significant arguments of the book is that the Constitution should not be understood as a ‘rule book’ but rather as a ‘textbook’ (pp. 155–156). While constitutions have been understood as a device to allocate power and lay down rules and regulations, Khosla emphasizes the pedagogical role of the Constitution in enabling the creation of a democratic citizen. This argument rests on Ambedkar’s assertion that constitutional morality needs to be cultivated in India (pp. 42–43). Another significant argument of the book is that the Constitution should not be viewed as an extension of the Government of India Act, 1935, because notwithstanding of the number of provisions taken from the 1935 Act, democratization indicated a major break from the past. The emphasis on study of Constituent Assembly Debates, and discourses during the nationalist movement, rests on the conviction that ideas matter in history.

The author has argued that Indian founders were radicals, since they rejected the imperial ideology and attempted to create democratic citizens through codification, a centralized state and freeing the individual from clutches of caste and religion. This argument does not reflect the diversity of views within the Constituent Assembly. The first chapter addresses the necessity of codification in the absence of shared norms and practices, but a careful reading of the Constituent Assembly Debates reveals that along with codification deferment was adopted as a strategy, as it was not possible to codify contentious issues. In the second chapter, Khosla argues that the founding fathers rejected political pluralism and adopted a centralized state, that centralization enabled the individual to become a unit of organization, and that through centralization, individuals were liberated from localism and gained agency and freedom. This is an interesting argument which turns theory of liberal constitutionalism upside down, though Khosla fails to acknowledge the distinctiveness of his argument and its disconnectedness from the framework of liberal constitutionalism. Moreover, he has ignored the view of members like Lokanath Mishra, Mahboob Ali Baig, Mohammad Ismail Sahib and B. M. Gupte, who argued for the autonomy of the states. And it needs to be mentioned that the Objectives Resolution moved by Jawaharlal Nehru on 13th December 1946 envisioned a confederation with autonomous federating units.

Khosla explores the Constituent Assembly’s response to the question of caste and religion in the third chapter of the book, arguing that the founding fathers wanted to free the individual from the clutches of imposed group identities. The focus is on the issue of representation and why reservation for Scheduled Castes and Schedules Tribes was accepted while communal representation and political safeguards on the basis of religion were rejected. In this regard, Khosla’s response is similar to what scholars like Shefali Jha and Rochana Bajpai have argued earlier: that it was the criteria of ‘backwardness’ rather than ‘group representation’ that enabled the Scheduled Castes and Scheduled Tribes to gain reservation, while communal representation on the basis of religion in the context of partition was seen as a threat to national integrity. Therefore, religious minorities could get cultural and educational rights but political safeguards for them were rejected. Khosla goes a step further and argues that the framework of representation (based on individuals rather than groups) adopted by the Indian founders can be considered as a third element in the creation of a democratic citizen along with codification and centralization.

The author has not addressed the rich literature on Indian constitutionalism that can be analysed through the frameworks of transformative constitutionalism and subaltern constitutionalism, both significantly different from the framework of liberal constitutionalism within which the author remains trapped, despite making many novel arguments. Unlike liberal constitutionalism, subaltern constitutionalism does not treat individuals in the abstract but rather situates them on an axis of marginalization on the basis of their social and economic disadvantage faced by them historically. While the essence of liberal constitutionalism is on limiting the power of the state, transformative constitutionalism emphasizes empowering the state to transform society in an egalitarian direction, as oppressed individuals cannot exercise freedom only if there is non-interference of state but rather require active intervention of state to free them from the historical bondages that have marginalized them. Though the author has cited a rich array of Western political theorists on themes such as state and democracy, he has not explored the scholarship on comparative constitutionalism that has emerged post 1990s that has eroded the hegemony of liberal constitutionalism: for example, global south constitutionalism, postcolonial constitutionalism, post-liberal constitutionalism and transformative constitutionalism.

Despite the failure to engage critically with literature on Indian constitutionalism and comparative constitutionalism, this book is a valuable contribution. Unlike most of the works in the field of Indian constitutionalism, which focus on constitutional interpretation, this work emphasizes India’s founding and democratic origins. The book is interdisciplinary in its approach and is a remarkable synthesis of intellectual history and political theory.