Constitution Vs Democracy?

The meaning of both democracy and constitutionalism is—perhaps now more than at any other time in Indian history—up for grabs. Both terms are frequently deployed in public argument and political rhetoric. They are put into use with equal force by all sides; they are used and abused with little care. One manages to arrive at any desired definition of democracy and of constitutionalism with astonishing convenience. The ongoing debate over the citizenship law is but an instance of this. But what precisely do the terms ‘democracy’ and ‘constitutionalism’ mean?

AS INDIA’S CONSTITUTION CELEBRATES ITS 70th anniversary, it has almost suddenly acquired a place in the nation’s public life. In protests that have stretched across the country, not only students but citizens of all stripes have recited passages from the document. They have held up for consideration the Constitution’s founding principles, its commitment to the equal treatment of citizens and its emphasis on the constrained character of state power. In marches and gatherings, at rallies and meetings, the Constitution has come to embody the standard by which government action must be measured. It has become the source of authority and the benchmark to which authority must conform.

The response to the outbursts of the past several weeks has, in turn, relied on the Constitution. The brutality of police action has been defended in formal legal terms, the protests have been painted as a form of uncivil disobedience, the criticism has been viewed as an attack on the supreme authority of elected representatives. The outpouring of pushback against the state has been framed as anti-constitutional, as a mark of what BR Ambedkar once termed the “grammar of anarchy”. Those who find little sympathy with the protests view the elements that drive them as figures who have opted out of the formal constitutional structure. They have taken the fight to the streets rather than limited it to the domain of the law.

Wherever we stand on this question, the meaning of both democracy and constitutionalism is—perhaps now more than at any other time in Indian history—up for grabs. Both terms are frequently, all too frequently, deployed in public argument and political rhetoric. They are put into use with equal force by all sides, they are used and abused with little care. One manages to arrive at any desired definition of democracy and of constitutionalism with astonishing convenience. The ongoing debate over the recently enacted citizenship law is but an instance of this. But what precisely do the terms ‘democracy’ and ‘constitutionalism’ mean? And what relationship might they share with one another? Is India at a moment where its democracy is in battle with its Constitution?

To recover a sense of what democracy and constitutionalism might mean, we must recover the historical imagination of India’s birth. The creation of postcolonial India was a spectacular and unusual event in the history of modern democracy. The 19th century scholars of democracy remained convinced that such a form of government, where people ruled themselves, was unsuitable to a place like India. This mindset, which drove the imperial case for colonial rule, held that only certain kinds of persons could govern themselves. Others, like Indians, needed to be taught and trained. They needed to submit to an alien force that would have to educate them into becoming democratic citizens.

India’s founders were confronted not merely with the ideological case against democracy for its people, but also the real experience of self-government across the globe. There were striking failures only a few years before India’s independence, namely, the interwar years in Europe, and there was the larger history of self-rule to contend with, most notably that in the West suffrage had been extended gradually. It had been universalised after the arrival of social and economic conditions that were deemed to be necessary for the franchise to be meaningfully exercised. It is the fact that India would have voters under circumstances that lacked democracy’s apparent preconditions that made its founding so peculiar.

The making of India’s Constitution—as I suggest in a new book, India’s Founding Moment: The Constitution of a Most Surprising Democracy—was a determined effort to confront this reality. For India’s founders, the colonial argument against self-rule had mistakenly taken the country’s reality as essential, rather than as the consequence of a certain kind of political vision. As far as they were concerned, an alternative political vision could create a different kind of people. It was possible, in other words, to create modern citizens who could rule themselves and engage in a democratic form of government, through the very practices of democracy. It was the rituals of self-rule that would lead to one being capable of performing self-rule.

To understand the ongoing crisis as a battle between our constitutional principles and our democratic reality is to misunderstand the meaning of both. Indian democracy and Indian constitutionalism may succeed or fall, but they will succeed or fail together

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To attend to this fact is, in the first instance, to give India’s birth the place that it deserves in the history of democracy. Its creation underlined the conceptual innovation at the heart of the postcolonial era, where democracy was re-imagined as the engine rather than the consequence of social and economic change. But the moment is also important for allowing us to think more deeply about the meaning of democracy and constitutionalism and about their relationship with each other. India’s founders were, of course, engaged in the constitution of democracy, but for them the constitution itself revealed what democracy was meant to be. In other words, they saw the constitution as democracy.

India’s Constitution aimed to liberate its people from existing forms of association and bondage and to rescue them from prior modes of thinking and understanding. To be a democratic citizen did not consist in simply exercising the vote, though this was of course fundamental. It meant being engaged in a form of deliberation that was appropriate to the modern world, where one was freed from one’s narrow horizons and one could commit to certain modes of rationality. It meant, simply put, that one was a free individual, who had agency and could, through the exercise of that agency, alter the structure of one’s world.

This vision had three core elements to it. The first dealt with the basic problem that India’s people had no understanding and experience of the norms pertaining to democratic life. What could it mean to grant freedom of speech and expression, for example, to a people who had no real knowledge of rights? It is here that the constitutional text, a single canonical document, could play a role: it could provide the grammar for citizens who were required to speak a new language. Indians have long acknowledged the extraordinary, somewhat absurd length of their Constitution, but strikingly little has been said about why the document takes the shape that it does.

In many societies, there would be little need to articulate and express—to formally codify in law—the basic principles governing democratic life. There would already be an existing understanding of those principles, a prevailing consensus that would make such articulation and expression unnecessary. But in the Indian case, no such understanding existed. For India to move to a rule of law society, for it to transcend other kinds of arrangements like kinship relations, the background principles that shaped a constitutional conversation around rights and liberties in a free world would need to be laid down. The Constitution would not only be a rulebook, as it was in so many other countries, but also a textbook.

Exposure to the grammar of a new language—the language of democracy—was one element of transitioning from subjecthood to citizenship. Another was being liberated from the chains of Indian society. India’s key political thinkers at the time, figures like Jawaharlal Nehru and Ambedkar, saw Indian society as a space burdened by unfreedom. A central unifying authority, such as the state, could counter the pressures imposed by society. It could place Indians under a common umbrella. Through its authority, it could remove the arbitrariness and inequality that came alongside being governed by different pockets of power, pockets that were limited in their fields of vision and prevented Indians from transcending the circumstances by which they were surrounded.

The state also held a further promise, namely, that of material transformation. But crucial to the drive for modernisation at India’s founding was the belief that change would have to occur through certain rules and practices. The short-circuiting of the path to economic growth would only result in a partial achievement, for the process to change was itself constitutive of freedom. This is the reason why the failures on the political left at the birth of modern India included not only those who sought plural authority rather than a centralised state—figures like Mohandas Karamchand Gandhi and Radhakamal Mukerjee, who held a different view of Indian society and its capacity for survival and change—but also the communists, who missed the interrelationship between democracy and modernity.

The final feature of India’s founding vision was a commitment to individual representation. During colonial rule, Indian society had been viewed through the lens of group identities. A person was viewed as a member of a community whose interests were predefined, rather than as an individual agent who could exercise his or her own choice. Many of the contests over political representation during the first half of the 20th century, whether by Hindu or Muslim nationalists, were attempts to propose some schema—weighting, reservations, separate electorates—by which a constellation of communities could be accommodated. The existing alternatives to such approaches were not accounts of representation centred on the individual, but rather a distracting away of the problem at hand and a focus on what were seen to be the real concerns; as seen, for example, in someone like Nehru’s interest in economic conflicts.

The Partition of British India was a constitutional breakdown of epic proportions. It threw into sharp relief the impossibility of resolving the problem of political representation through the framework of identity. With it, the Constituent Assembly shifted to creating a model that could focus on the individual, a model that not only held the promise of freedom, for one’s interests were politically determined rather than predefined, but also the promise of stability, for it escaped the endless negotiation over competing group dynamics. Indeed, to be part of a democratic framework was to submit to the fluidity of identities, for what mattered was the emergence of political majorities and minorities and the constant reconfiguration of majorities and minorities within the domain of the political.

These three features of India’s founding vision were held to make democratic citizenship possible. Within such a framework, a person would be unshackled from extant forms of reasoning and association. It was this liberation which made self-rule possible. Without it— without speaking a new language or being under a new kind of authority or remaining under the pressure of existing groups—one could not truly rule oneself. To be part of a democracy thus meant being part of a new way of relating both to every other person and to the state. It was an egalitarian promise that extended far beyond the casting of the vote.

To view India’s present moment as a contest between democracy and the Constitution is a mistake. It is more accurate to understand those on either side of the ongoing conflict as appealing to both democracy and constitutionalism. For those who have raised concerns at the present moment—concerns pertaining to the emergence of a Hindu nationalist state that does not treat all individuals equally and to the rise of state power that is not limited by legal means—India is at risk of giving up on both democracy and constitutionalism.

Democracy, for India’a founders, could begin at the ballot box but it could not end there. It was a form of government, indeed a form of life, where citizens would re-imagine their relationship with the state and with one another

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If one attends to India’s founding vision, one finds that this is so for the plain reason that democracy cannot mean majoritarianism. A system that grants the vote to each person—a framework of one person, one vote—is, to be sure, central to such a form of government. But necessary as it is, such a framework is not sufficient by itself. Even popular rule, as the late John Gardner once put it, requires the presence of rules. The legitimacy of authority turns not only on how it comes about—say, through free and fair elections—but also on how it is exercised. Unless authority is exercised in a way that treats individuals as free and equal beings, they cannot be regarded as self-governing in the true sense of the term. Democracy, for India’s founders, could begin at the ballot box but it could not end there. It was a form of government, indeed a form of life, where citizens would re-imagine their relationship with the state and with one another. This was the ultimate point of India’s Constitution: it sought to articulate a vision of what democracy meant.

The three elements of democracy that I have tried to underline—the commitment to certain rules; the presence of common authority; and the emphasis on the individual—could legitimise authority. As India moves away from each of these elements, the question that the country faces is not only whether it is moving away from the idea of democratic citizenship, from the idea that we are all truly ruling ourselves, but whether it is also moving away from the idea of legitimate authority. What these elements promised, after all, was not only the birth of a certain kind of politics. They also promised to provide a justification for why we should accept the coercive apparatus of the state. The short answer to this question is that we should accept this apparatus because the state treats us in free and equal terms.

In the absence of that justification, in a world where authority begins to lose its legitimacy, the state will begin to lose its monopoly over the use of force. That monopoly rests, after all, not on the strength of a police force but on whether people are willing to accept such a force. The loss of a monopoly over force will result not only in extra-legal forms of coercion and violence, but more fundamentally in the blurring of the distinction between what counts as legal and extra-legal force. If a political order cannot treat people as free and equal beings, then it invites them to question the reason why they should remain bound to that order.

Whether India’s founding vision will succeed or fail remains to be seen. The fortunes of any constitutional order turn on the political commitment to that order. This was not lost on the makers of modern India. The realisation was most powerfully witnessed in the efforts of Nehru, whose term in office as the nation’s first Prime Minister marked a painstaking effort to demonstrate such a political commitment. Nehru understood that the document could only do its work if one had fidelity to it. There was no framework of governance or charter of liberties, he rightly saw, that could be either self-sustaining or self-executing.

To understand the ongoing crisis as a battle between our constitutional principles and our democratic reality is to misunderstand the meaning of both democracy and constitutionalism. Indian democracy and Indian constitutionalism may succeed or fail, but they will succeed or fail together. The Constitution is what democracy was—the text articulated and expressed what it meant for every single individual to rule themselves. The protestors across India—calmly walking in the silent marches, passionately participating in the loud gatherings—are relying on the Constitution to recover what Indian democracy was meant to be. Theirs is India’s founding vision.

(This essay is drawn from Madhav Khosla’s new book, India’s Founding Moment: The Constitution of a Most Surprising Democracy)

About The Author

Madhav Khosla

Madhav Khosla teaches law and politics at Columbia Law School, US, and Ashoka University.

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