HOW does one read a book on the founding moment of our Constitution? The reader of India’s Founding Moment: The Constitution of a Most Surprising Democracy (Harvard University Press, 2020) has to be acutely aware that in this country the Chief Justice of India did in fact hold formal proceedings in his own court on a non-working day to hear and adjudicate a matter that involved grave charges against his own personal conduct. That the court passed extraordinary orders in the said matter is only a matter of further violation of any notion of justice – natural and procedural. The reader cannot but wonder as to what is the meaning of the words ‘We, The People’ as we try and make a sense of belonging and citizenship in the face of the Citizenship (Amendment) Bill, which in all probability would have become a law by the time this essay is written.

Madhav Khosla tells us that one purpose of the lengthiest constitution in the world was to create a universe of shared meaning(s) through the act of codification. This universe of shared meaning, with all its fractures, was necessary for the emergence of a democratic polity and society. The first and most fundamental of these shared values was the idea of equality. A civilization where the idea of being impure and unequal is a constitutive element, the idea of equality has to be a shared meaning. One way in which the meaning was sought to be created was through codification. The universal franchise based on adult suffrage, which is predicated upon the idea of equality in its most fundamental sense is a shared meaning that the founding moment of the Indian Constitution gave us. It was an endorsement of the promise that the nationalist imagination had made unto the people and itself. It created the foundation of the ‘radical democratization’ of Indian polity and society.

The insertion of two terms upon which we as people have never fully agreed ‘secular’ and ‘socialist’ are also illustrative of the mode in which the Constitution provided an aspiration to us. This mode of codification is different from the colonial mode of codification – even when moved by liberal-imperial impulse – which had at its heart the desire to control and rule. The democratic codification in contrast was meant to empower those from whom it derived its legitimacy. This, Khosla argues, was the basis of the ancient Greek ideal of ‘constitutional morality’ that Dr Ambedkar cherished and wished for India.

Ambedkar spoke eloquently: ‘The question is, can we presume such a diffusion of constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.’ Dr Ambedkar wanted to ensure that the legislature did not – he could not imagine the judiciary doing it – destroy the constitutional morality by exercise of its powers in a way that constitutional order was re-imagined while retaining its formal aspects.

 

The inclusion of ‘Directive Principles’, non-justiciable and non-enforceable and yet ‘fundamental in the governance of the country’ where the government was duty-bound to apply them in law making are at the core of the constitutional morality that we aspire to. The distinction between rights that are justiciable and rights that are a guide, a beacon, is maintained in the document but the very fact of the inclusion of non-justiciable aspects in the Constitution is a remarkable device of creating and fostering morality, constitutional and societal. They put an obligation on the state and the society.

This aspect of consensus making was carried into other aspects of the Constitution. Madhav Khosla identifies two: the strange case of the inclusion of justiciable fundamental rights and simultaneously the attempt to circumscribe them – and by that logic, judicial review of them – by incorporation of exceptions to the rights. The other was a preference for procedural due process – wherein an action of the executive is challenged and adjudicated only upon the adherence to, or violation of, procedure laid down in the law – over substantive due process – wherein the very law can be reviewed.

 

The question that we need to ask in our times is what happens when the very idea of constitutional morality is brought to ridicule. What happens when consensus challenges the need for that beacon, that idea that informed the national movement and came to find a place in the principles by which the constitutional morality was imagined? And what does one do with a morality that is both non-enforceable and subject to the vicissitudes of an idiosyncratic judiciary and public will?

Khosla argues that these questions have to be understood in relation to the location of power. Though federal in aspiration the Indian Constitution according to him has strong centralizing tendencies with the Union Parliament having the power to create new entities and abolish existing ones. The creation of an overarching state, he argues, was not just a new kind of polity but an attempt to usher in modernity. ‘More fundamentally, the existence of a centralized state involved a turn to modernity – including the power dimension associated with modern institutions – and enabled a new kind of intersubjectivity. India’s founders saw localism as burdened by a set of practices that disabled individual agency. Simply put, natives were seen to be without a politics that could enable self-rule. The founders sought to liberate Indians from localism – to rescue them from villages and kings – in order to grant them collective agency.’ (p. 73)

By placing all Indians within the rubric of its influence the Indian state hoped to create and foster new sets of shared meanings. This centralizing state was not the only option before us. For at least half a century before the framing of the Constitution, India had debated a polity that sought to deliberately create a weak central authority. In M.K. Gandhi this view had a persuasive advocate. Nehru’s embrace of the modernizing project and a belief that industrialization was necessary for securing a foundation for freedom, coupled with a desire to rescue the new polity from what he viewed as obscurantist tendencies, India rejected the Gandhian vision.

 

Khosla shows that underlying Nehru’s vision was not just a desire for material progress but a new idea of citizenship and belonging where by displacing local, parochial structures with an overarching structure, India he hoped would create new forms of citizenship with agency. The hope was that by creating a different kind of relationship between citizen and state we would also foster a different and more equal relationship among citizens. This aspiration was shared by Dr Ambedkar as well, who viewed modernity as a liberating condition. They were not unaware that the centralizing tendencies had the potential to crush liberties and usher in bureaucratic rule. The fear of the shared meaning becoming hegemonic, and an impediment to freedom, was suspended.

But eventually the argument that only an overarching state can work towards the welfare of all, and create a polity based on shared meanings and common authority, could be created. The individualization of identity, through discarding any notion of communal representation in the new schema, was a vital step towards creating a modern citizenry that would create a new India. This, Khosla shows, was a remarkable turn for the Indian polity, given the hold that the idea had on the Indian mind for a long time, and that the constitutional provisions were being debated in the aftermath of a violent Partition.

 

This move from representation based on one’s identity to representation based on one’s franchise was aimed at creating democratic norms unencumbered by communal identities, which in turn would contribute to common life that was being envisaged. This was to be our modernity, that our political universe was not inherited but cultivated. If one set of normative considerations suggested rejection of communal representation, similar normative arguments favoured group based reservations in the case of caste. This was a recognition that exclusion, oppression and denial of agency by structures of caste could not be entirely ameliorated by universal suffrage.

The endurance and longevity of this project depended upon the shared universe of meanings. But what happens when the centralizing tendencies of the Constitution come to the fore on the basis of a democratic mandate, and the polity and society convulse towards creating new structures of meaning around identity, representation and belonging? Does the Indian Constitution have the plasticity for such changes in the ground beneath our feet? How does one read the present Constitution with all its amendments and mutilations? Will the imagined ‘basic structure’ prevail, allowing for a negotiated constitutional morality?

These are certainly not the questions that Madhav Khosla’s book asks. And yet, he is hopeful, not naively but informed by deep historical and political sensibility. One could think of these with a hint of regret that we – at least some of us – had no imagination or understanding of the Indian problem. In this reading we can mourn the passage of an older consensus and resultant constitutional morality and even loath the fact of the exclusion of those who helped foster and helm that shared universe. In this view we can be fearful of the future and hence wish for a more genteel, comforting past to reassert. Longing and lament are civilizational virtues not shared by constitutional statutes.

 

In an alternative view, we could remain hopeful; locating that hope in the innate wisdom of the people of India and the wisdom of the Supreme Court to rescue the constitutional morality that it helped create and ‘basic structure’ that it imagined. This we would do with full awareness that both people and courts are fickle and subject to temptation, fear, persuasion and even idiocy. Of the two sources of hope, our belief in the courts to adjudicate morality – including the morality that inheres in a land parcel of five acres – is baffling. We vacillate in our estimation of its failures, sometimes attributing it to the failure of an individual member of the judiciary and at times the system, but rarely ask the more substantive question of their authority and capability to adjudicate on questions of virtue. Thus we take recourse to celebrating the discreet charms of a dissenting judgement.

In a more pragmatic universe we learn to understand the ‘realities’ of our political life and ‘adjust’ ourselves to it. Wherein the adjustment would require us to concede that our Constitution and its morality, and the meanings that we ascribed to it and derived from it, were contingent upon a certain configuration of political culture, and that it has now been defeated. And with that the Constitution itself has become redundant. One set of codifications will come to be replaced with other sets of codes, laws, morality and their semantic universe. The only source of legitimacy of the Constitution was us, the people, and the people have given their consent for a new polity and a book that befits that polity. This has been the experience of many societies that became free from imperial, colonial rule in the last century. They have changed – some more frequently than others – their founding documents without attributing any inherent quality of permanence to them. We pragmatically discard what is redundant and embrace one that is conducive to the present.

 

These readings share a common meaning: That there was a covenant among us as free, individualized citizens and we gave unto ourselves this document that we called our Constitution. We imbued it with meaning, morality, hope and even light. A covenant requires mutual obligations. It is meaningful when the state makes a certain promise that it pledges to uphold; in exchange we imbue it with legitimacy and authority. But what if we suspend that covenant or it is unilaterally suspended? The Constitution then becomes a ‘sealed envelope’ (a much cherished invention of the same supreme court – lower case not a typo – that gave us the public interest litigation).

This sealed envelope is the most dystopic of inventions. Like a dystopia it is total, sealed and dark. It holds no truth. Truth we have been told needs no concealment. A new constitution that could be given to us might just as well be a sealed envelope, the contents of which are known only to the chosen few. We can only dreadfully imagine its contents; each creating a unique version, with no possibility of shared meaning. Constitutional morality would be annulled. With that we would arrive – truly and fully – in the post-truth age. And then we can exult and not bemoan.