India's Constitutional Anxiety

Has the Constitution transformed Indian society?

Jawaharlal Nehru moves the resolution for an independent sovereign republic in the Constituent Assembly in New Delhi. Hulton-Deutsch Collection / CORBIS
01 November, 2012

DURING A MEETING of the Indian Constituent Assembly on 17 September 1949, Dr BR Ambedkar sought to address an anxiety regarding the Assembly’s legitimacy. The members of the Constituent Assembly had been selected by the provincial legislatures set up under British rule. In turn, these provincial legislatures had been elected under a limited franchise based on tax, educational and property qualifications. The historian Granville Austin estimates that in these elections only 28.5 percent of the adult Indian population could vote. There were separate electorates for Muslims and Sikhs, and representatives to the Assembly were added for princely states, as well as the Scheduled Castes and Tribes, and other minorities. But, still, upper castes, professionals and men disproportionately dominated. How could the Constituent Assembly then claim that the Constitution they were drafting was representative of the people? Or even that it was well-suited for India?

On that September day, Dr Ambedkar, the chairman of the Constitution’s Drafting Committee, conceded that the Constituent Assembly might not be truly representative. Yet, he claimed, if the Assembly had been elected on the basis of universal suffrage it would not necessarily have “possess[ed] greater wisdom…”. Indeed, “It might easily have been worse…I am quite frank enough to say that this House, such as it is, has probably a greater modicum and quantum of knowledge and information than the future Parliament is likely to have.” Despite being an ardent backer of universal franchise and (limited) reservations, Ambedkar expressed unease throughout the life of the Constituent Assembly about what would happen to the quality of the country’s democratic institutions once all Indians were allowed to participate.

Ambedkar recognised the deep tension in the task the Assembly was undertaking. The Constitution was designed not simply to affirm independence, but also to transform Indian society. It would take on the country’s ingrained inequalities and open up new spaces of freedom, particularly in, according to Ambedkar, that “den of ignorance”—the Indian village. It would attempt to unify a country of such varied communities, castes, and religions that just a few years earlier Ambedkar himself had written: “[T]here is no nation of Indians in the real sense of the word. The nation does not exist, it is to be created.”

Yet those who would run the democratic institutions set up by the Constitution would come from—or at least be elected by—the very same society the Constitution was trying to transform. How would a Constitution seeped in liberalism and notions of common citizenship fare amongst a people whose commitment to these ideals was questionable? Would the Constitution transform Indian society or would society end up transforming it?

Over 60 years later the Constitution has endured, but both it and the country have changed in ways that demonstrate both the power and the limits of the document’s original vision. The two books under review provide much-needed reflection on the current state of this grand experiment. While André Béteille is an emeritus professor at the University of Delhi, a winner of the Padma Shri, and one of India’s most acclaimed sociologists, this is Madhav Khosla’s first book. Khosla, an alumnus of the National Law School in Bangalore, is currently still a PhD candidate in political theory at Harvard University.

Khosla’s age is noteworthy as he is one of the rising stars of a new generation of young law scholars attempting to breathe fresh life into a long underperforming legal academy. Although India has certainly produced some notable legal academics like Upendra Baxi, MP Singh and SP Sathe, the field has generally lagged behind the other social sciences in the country. This is in part linked to the overall decline in the status of the legal profession in the decades after Independence. During the colonial era, lawyers had dominated the leadership of the Independence movement and young Indians saw the profession as a way to succeed in a British system that prized itself on gifting India the rule of law. However, in Nehru’s planned economy, which emphasised centralised development and cultivating science and technology, many of the best students flocked to disciplines like medicine, economics and engineering instead. The talent that remained in the profession normally turned to better paid practice rather than teaching in law schools, which did not really prize scholarship anyway. Only in recent years, as liberalisation and the growth of free enterprise created a larger, more lucrative market for legal services, and the national law schools increased the prestige of the degree, have the most academically gifted students returned to law in large numbers. Some graduates from this initial pool are now slowly making their way into the academy both in India and abroad.

The historical anaemia of the Indian legal academy has resulted in an odd situation. Despite being at the centre of Indian political life since Independence, there is a surprising dearth of accessible books about the Constitution. If one wants a good introduction there is really nowhere to turn. Granville Austin’s Working a Democratic Constitution: The Indian Experience (OUP, 1999) is far too detailed, as is HM Seervai’s magisterial three-volume Constitutional Law of India (Universal Law, 1996, 3rd edition), and both are rather out of date. Most other books on the Constitution or the Supreme Court are either tedious compilations of case law used for teaching law students or collections  of autobiographical anecdotes by former judges or grand dons of the bar.

A group of Harijan boys protest in Delhi in 1981 to highlight the problems faced by them. Keystone / Getty Images

Khosla’s book steps into this void with admirable élan. At a short 165 pages, it can easily be read in an afternoon. It is written in lucid and sometimes soaring prose that make clear the author’s love for the Constitution and the project it undertakes. The book does have an occasional tangent that only a lawyer could relish. However, in line with its targeted wider audience, it keeps the use of case names and legal jargon to a minimum. Khosla uses the limited space to not only hit the highlights on the separation of powers, federalism, and rights, but also make novel, if at times controversial, arguments about them, rendering this a far more compelling read than a simple overview.

The Indian Constitution has certainly changed since Independence. It is not just that it has been amended more than 100 times. The Supreme Court has also reinterpreted it, often stepping in when it sees—as Ambedkar had feared—India’s democratic politics failing. Public interest litigation has allowed the apex court to virtually take over government policies from food security to environmental regulation, when they have been found to be so lacking as to violate citizens’ fundamental rights. After repeated showdowns in the country’s early years, including during the Emergency, the Supreme Court has limited the ability of Parliament to change the Constitution, nullifying amendments that it finds alter the document’s basic structure, such as its secular, democratic and federal nature.

Khosla dutifully charts these and other major developments, but one of his principal concerns is what he perceives as an ingrained and arguably growing “asymmetry” in the Constitution. By “asymmetry” he simply means differential treatment. For example, the Indian Constitution sanctions a separate constitution for Kashmir and semi-autonomous districts and regions for the Northeastern states. Scheduled Castes and Scheduled Tribes are allowed reservations, as are those belonging to the “Backward Classes”. Educational institutions of religious minorities are given special protection.

Khosla readily admits that different treatment for different groups has value. India is a country knitted together from people and communities of markedly unequal and diverse backgrounds. Accommodating difference seems a necessity in such conditions. But he worries that much of the asymmetry in the Constitution may be too severe or may have outlived its usefulness. He sees costs in these carve-outs, arguing that, “The practice threatens diluting national citizenship, creating compulsory identities, and inhibiting an understanding of which principles govern us. The risk, the ultimate risk, is that our Constitution may begin to suffer from an identity crisis.” As the underlying reasons for creating constitutional devices that promote differential treatment disappear they “either become blatant forms of discrimination or exceptions to rules…” This inhibits, instead of encouraging, the quest for “a long term consensus” and “a genuine search for symmetry”. As he notes when discussing India’s complex and fractured federal structure, differential treatment may ultimately end up “perform[ing] disappointingly and will serve to reflect, rather than resolve, what is ultimately a sociological problem”.

Khosla’s fears concerning differential treatment draw on a strong strain in contemporary Indian liberalism. For example, one of Khosla’s mentors, the political theorist Pratap Bhanu Mehta, has warned against turning Indian democracy into a “quotocracy” where citizens are lumped together by certain ascriptive characteristics such as caste or gender. Such a practice, Mehta worries, undermines the common citizenship that makes democracy possible, while a fixation on quota-based power-sharing unintentionally “displaces the need to take class difference seriously”.

ANDRÉ BÉTEILLE MAY ALSO BE READ as a spokesperson for this camp of Indian liberalism. In Democracy and Its Institutions he finds two prominent, and often competing, views of society in India: “The first is a representation of India as a society of castes and communities, and the second its representation as a nation of citizens.” Béteille sees a steady, if uneven, withering away of the importance of caste in Indian society, pointing to the increasing disregard of ritual restrictions on food and water or on occupational mobility. He worries that, “While the evidence points to the decline of caste in many fields of economic and social life, there is one domain, that of politics, in which caste has increased its hold.” He continues in a separate chapter, “Contrary to the aspirations of many in the Constituent Assembly, Indian society has not ceased to be a society of castes and communities. Democratic politics has in many ways strengthened collective identities at the expense of the identity of the individual citizen.” He quotes Ambedkar approvingly when the Dalit politician warned, “It is wrong for the majority to deny the existence of minorities. It is equally wrong for minorities to perpetuate themselves.”

Indeed, it is striking how Ambedkar, more so than the other founders of the nation, is so central to debates over the Constitution, and particularly caste and citizenship, in contemporary India (both Béteille and Khosla quote him frequently). Meanwhile, Nehru’s planned economy and non-aligned foreign policy have been out of fashion for some time, along with his general distrust of religion. Gandhi’s echoes are inevitably heard in present-day civil disobedience movements, but his focus on village and spiritual life seems of a different era in the tumultuous globalisation of India’s cities and farms. It is Ambedkar—the liberal, the moderniser, with his anxieties about how to confront ongoing historical discrimination, and his calls on all parties to engage with the state—who seems most in the present. It is his statues that are erected and torn down. He is the one who was voted the ‘Greatest’ Indian besides Gandhi in a recent poll in the newsmagazine Outlook. He is an icon for contemporary lower caste movements looking to claim a piece of the national narrative. Simultaneously, his remarks expressing unease about perpetually continuing reservations are often quoted by the upper castes, allowing them to couch their claims, which might otherwise seem self-serving, in a lower-caste voice. And, most importantly, he was a scholar who thought both seriously and saliently about citizenship and equality in a manner filled with enough internal tension and movement throughout his own life to provide fertile ground, since Independence, for a wide range of viewpoints.

However, Ambedkar is certainly not the only source of authority on such questions. Rochana Bajpai, in her well-researched Debating Difference: Group Rights and Liberal Democracy in India (OUP, 2011), tracks the broader political debate around differential treatment for caste and religious groups from the time of the Constituent Assembly through legislative debates over Shah Bano and the Mandal Commission. In the process she offers an alternative to Béteille and Khosla’s account of the effects on national citizenship of what she refers to as “group rights” (a term notably absent in Béteille and Khosla’s narrations, perhaps because they do not want to validate the differential treatment of groups as a “right”).

Bajpai, a professor at the School of Oriental and African Studies in London, argues that the Constituent Assembly, which deliberated in the traumatic shadow of Partition, represented “a moment of containment in the long career of group rights in India”. Group rights (including the use of separate electorates) were widespread in the colonial era; according to Bajpai, the events of the 1980s and 1990s such as the Shah Bano case, which inadvertently triggered the political reaffirmation of a separate Muslim personal law, and the adoption of many of the Mandal Commission’s recommendations, including creating new reservations for Other Backward Classes, are best understood as a reemergence of this strong group rights streak in Indian constitutionalism. Indeed, for Bajpai, group rights are not an attack on liberalism, but represent a central tenet of an alternative Indian liberalism that is still being articulated, a liberalism which emphasises social justice, lived equality and diversity, while discounting the negative impact that differential treatment may have on national unity or citizenship. Such liberalism draws on a postcolonial critique that “universal ideals in general usually appear as oppressive ideologies, sustained by asymmetrical relations of power, and [are] necessarily antagonistic to difference”.

At another level, group rights are simply a reflection of India’s historical situation. Social bonds are notoriously thick in India, while bonds to the state have traditionally been weak. How many Indians subscribe to the universal notion of Indian citizenship? When Dalit villagers vote do they see themselves participating in India’s grand experiment? Does a Kashmiri? Caste, religious, tribal, and regional ties often submerge broader senses of commonality, as do glaring economic inequalities in a society where different groups can live side-by-side with little actual mixing.

The struggle to find common understandings of citizenship is not unique to India. In the United States it was arguably only after the Civil War that any sense of true national citizenship was created, and it was only after the African-American Civil Rights Movement that this citizenship could claim to be universal. The European Union is currently flailing in its attempts to create a pan-European identity.

One way to interpret this situation is that India is merely lagging behind and that the Constitution should simply attempt to transform the country and create an undifferentiated Indian identity in a way that models the United States, England and Japan. The nation just needs some time to catch up, and with some luck and hard work, it will make it.

Alternatively, the Indian Constitution can be seen as enabling a different kind of transformation. Now, the quest for a fundamentally different sort of modernity from the West’s largely lost out at the founding of the Indian Republic. As Béteille explains, Gandhi’s communitarian ideals and commitment to “village republics” appealed to those in the Constituent Assembly “because they appear[ed] to offer an authentic alternative to the unsatisfactory and unsuccessful experience of western institutional forms”. But despite being repeatedly evoked, Gandhi’s vision did not make it into the Constitution. Neither did the critiques of Tagore—who fervently rejected nationalism, lamenting that it turned people into “neatly compressed bales of humanity” defined by rights, the market and citizenship, and not their spirituality or the looser set of social ties that enrich life.

The endurance of the Constitution means that liberalism is now the dominant framework for validity in political discourse in India. This still leaves open the question of exactly what type of liberalism the Constitution should be transforming India towards. Is it a mimicking of a liberalism found in the West, which is certainly evolving and under threat there, but still hegemonic? Or a unique type of liberalism suited to the situation in India, which perhaps the world can then emulate? And are group rights a central tenet of this difference? There is definitely a nationalistic and psychological appeal to the latter argument. After all, it feels far better to be creating something unique, rather than simply lagging behind others.

An analysis of whether a new Indian liberalism is emerging should not necessarily conflate all types of group rights, for the goals of such differential treatment often vary. With regard to caste, almost everyone agrees that the state should work towards a day when all castes are treated equally by society and the state. The disagreement is instead over how to do so, including how much the state should temporarily draw on the group rights tradition in Indian constitutionalism in its attempts to correct past injustices and continuing discrimination. In contrast, many would argue that different religious groups each have inherently particular needs, and so should forever be treated differently by the state (for example, by having a separate family law for Muslims). Meanwhile, it is deeply contested whether or not the Constitution should one day treat all states—whether it is Kashmir, Maharashtra, or Nagaland—the same, without any special carve-outs for their particularities.

If India’s Constitution, as Ambedkar conceded, was created on the basis of somewhat dubious democratic authority, few today doubt its legitimacy. The country has come to own the document. In part, this is because it has not been static. In the face of new demands, it has been amended and reinterpreted again and again, often to allow for more and more differential treatment. It is a document and a society still clearly in transition— aspiring for and deliberating over how best to further equality and accommodate difference.