‘Constitution’s founding idea: only citizenship unmediated by identity will create sustainable political environment’

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Madhav Khosla teaches law and politics at Columbia Law School and Ashoka University and is the author of India’s Founding Moment. He spoke to Nalin Mehta on the making of India’s Constitution, the debates that animated its creation and their contemporary relevance:

You have written about Nehru’s unhappiness on the Indian constitutional revolution not being given its due as much as the American, French and Russian revolutions? Why was this so?

There are three broad reasons for this. One, a lot of our attention has been focused on Partition, which was obviously an extremely dramatic event. But it seems to have minimised other things going on at the time, namely the birth of the Indian constitution. Secondly, a lot of scholars felt that this was just the extension of something that had already gone on before: either an extension of the Government of India Act or an extension of certain Indian documents like the Motilal Nehru Report. So people thought there was nothing very special happening. The third potential reason is the notion that the major site of revolutions are in agrarian revolts, labour movements or economic changes rather than the birth of a constitution

So why was it neglected in the history of ideas?

There’s a big genre of scholarship which basically says that Indian political development is the product of certain kinds of self-interested struggles.

You know, you want something, I want something else and constitutions are basically negotiations. They are elite contracts or they are social pacts used to manage the peace and preserve interests among the different groups and there isn’t really a sense that actually ideas shape history as well. Obviously interest do matter, but the fact that actually these people self-consciously engaged in something that they thought was unique and different and that there was a kind of ideological commitment at work is not something that is widely noted.

On the constant tension between rights and duties, did BR Ambedkar dilute his position on this between his Memorandum on the issue in 1947 and between his speech in the constituent assembly?

I don’t think that Ambedkar diluted his position. I think the debate at the making of India’s constitution about the directive Principles was about which body should have the authority to enforce these principles. Ambedkar correctly sees that question simply as a question of institutional design. He doesn’t see that as a question regarding the commitment of the state to those goals.

The Constitution still guarantees those goals. The only thing it says is that you can’t go to court to impose that. That doesn’t mean that they are more or less powerful. For Ambedkar and for a number of others, that’s literally a design choice.

It’s almost a pragmatic decision about what types of questions they think should be decided by what kind of bodies.

One of the mistakes we make is in thinking that because in things like the directive principles – where the Constitution does not give us a power of judicial enforcement – it means that the Constituent Assembly did not care very much about them. I don’t think that’s true.

How did the Constitution find a balance between the competing ideas of say Gandhi on decentralisation v/s federalism versus a more unitary structure?

The Constitution rejects the Gandhian idea, famously so. The Gandhian camp and Gandhi himself had much more faith in Indian society and its capacity to change by itself. People in the Nehru and Ambedkar camp were radical critics of Indian society. For them, Indian society is so deep seated in its localism, in its inability to actually function in a modern way that the only way to respond to Indian society is actually through the power of the state.

For them, only a strong force like the state can actually respond to attacks and liberate the individual from Indian society.

There were competing ideas of India in terms of religious identity by Savarkar, later Golwalkar and then Deen Dayal Upadhyaya. How did these tensions play out in the making of the Constitution?

There are two kinds of critique that came up. One was that the country should only guarantee freedom for people who are Hindus. So there was an effort to minimise differences among Hindus and to emphasise differences between Hindus and others. That was found unappealing simply for the reason that it can’t guarantee freedom. There was an understanding that the only real definition of freedom is one that treats people as individuals. Anything else is actually a form of constraint in one way or another.

The second way in which those critiques came up is about whether or not the Constitution had foreign or western roots. The Constituent Assembly did not see the question in terms of foreign versus Indian roots because it was articulating universal principles. It was able to do this so easily and effortlessly and engage with a range of global constitutional traditions because it asked and addressed the question in universal terms. It was interested in what it means to be a free individual, regardless of who or where that person is.

The post-colonial movement is an effort to move beyond colonialism and not to return to localism. It’s an attempt to move beyond colonialism and reach some kind of universalism.

Yet, leaders like Lala Lajpat Rai from the stream of Hindu political thinking in earlier years had a different view?

Lala Lajpat Rai was dead by them but he was a fascinating and important figure. He was one of the very few people from 1910s-1920s who addressed the problem of religious difference. Lala Lajpat Rai was one of the few who said that there are genuine religious tensions and that Hinduism is not like Islam. But he says it doesn’t follow from that you can’t live in peace. The political group he was part of still wanted a secular country. He and Ambedkar were the only two people who confronted religious differences seriously.

Can you elaborate on Ambedkar’s view on communal politics?

Ambedkar’s text on Pakistan and on Partition was basically his attempt to say that the case for Pakistan is not a crazy case. In his view, it was not just a function of prejudice there is actually a serious debate here. You can’t just wish the problem of Pakistan away by saying that Jinnah is crazy.

Like Lala Lajpat Rai, Ambedkar was the only other person at the time who takes representation seriously and is willing to look at every permutation and combination. It is important to stress that he does not make an argument for Pakistan in any way but says that if you want to reject Pakistan, you have to confront this issue.

He looks at all of the tensions involved, sees the widespread failure to address Hindu-Muslim relations and says that unless you confront the reality of difference, you are not actually able to create a secular state.

So he is pushing back against those who are saying there is nothing different between us, because they think that the emergence of secularism will come from that. Ambedkar’s point is the opposite: that secularism will come by accepting that there are differences and then addressing that

How do you square the current debate on CAA with the identity debates in the Constituent Assembly?

The core difference between them is that in the Constituent Assembly there was a strong belief that you have to create citizenship unaided by identity because that is actually what freedom is. Second, because this creates a sustainable political environment. Partition brought into sharp focus the fact that identity permutations and combinations tried for decades did not work. Partition was a constitutional failure.

The idea at the Constitution’s founding was that only citizenship unmediated by identity will create a sustainable political environment but in the framework of the CAA you are seeing the opposite. You are seeing an attempt to mediate citizenship through identity. If the lessons of a hundred of years ago are right then it’s going to create further problems, not solve them.

Would the Constituent Assembly have adopted something like CAA?

No. It didn’t. We don’t even have to hypothesise about it. It explicitly put in a framework of citizenship that was not that. Neerja Jayal’s work really powerfully shows that.

To what extent is it possible to pervert the Constitution? How impervious is it to political manipulation?

Ultimately no constitution is impervious because it does not depend on the Constitution. It depends on the external political commitment. No document is self-executing or can provide its own security. If there is an external political commitment to making its work in a way it’s meant to work, it will work. Else, it won’t.

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