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Saving the Constitution is a battle cry & Madhav Khosla’s book lays bare the founding moment

Madhav Khosla’s 'India’s Founding Moment' sees the Constitution as the tool that built a civic culture in Independent India. It gave Indians a ‘grammar of democracy’.

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The nation is fighting for the ‘idea of India’ by protesting against the Narendra Modi government’s Citizenship (Amendment) Act and plans for a nationwide National Register of Citizens. But a new book delves deep into the idea of the Indian constitutionalism, at a time when the document has become a talisman for those defending India’s foundations.

Madhav Khosla’s India’s Founding Moment sees the Constitution as a tool that built a civic culture in Independent India. The book is a guide to understand the document that continues to act as India’s powerful glue and influences the behaviour of its citizens. The founders gave Indians a grammar of democracy through the Constitution.

For Khosla, the Constitution is the catalyst in the democratisation of India. It infuses values, rights and a sense of duty in its citizens – things colonial rulers said couldn’t be done. People of India not only cultivated constitutional morality, but have been willing to make sacrifices for the values cherished in the Constitution.

Masters of democratic destiny

Khosla provides evidence of how the people of India have lived up to the expectations of the framers of the Constitution and why the framers were right in reposing trust and faith in future democratic citizens of the country.

Indians have proved Georg Wilhelm Friedrich Hegel wrong because despotism is not acceptable to us, and Nehru would have been happy to see that we no longer have what Hegel termed as ‘slave mentality’.

The CAA protesters are testimony of the ‘civic culture’ that was born with the Constitution. The citizens’ clarion call is clear — choices made at the founding moment of the republic cannot be altered now. The citizens are now masters of their own destiny and refusing to be governed by a law they consider contrary to their sense of justice and to the foundational principles of the Constitution. They are going much beyond the Supreme Court’s highly technical, narrower and legal techniques of examining the constitutionality of parliamentary laws.

Also read: Ambedkar said protests were unconstitutional. But what about protests to restore Constitution?

Power of universal adult suffrage

The title of the book – India’s Founding Moment: The Constitution of a Most Surprising Democracy – gives an unmistakable clue as to what’s inside.

Madhav Khosla’s book provides a detailed and insightful take on the “world’s longest written” Constitution and unearths the historical process of its formation.

The book succinctly captures India’s founders’ responses to “the problems of democracy and its pre-conditions”. Khosla rejects the view that the Constitution was just an extension of Government of India Act,1935. He rightly says that even though the Constituent Assembly members were not directly elected, had almost one-third nominees from princely states, and the Constitution was not approved by the people in a referendum, it still reflected the aspirations and political imagination of ordinary Indians.

The idea of the Constitution and democracy in India was pejoratively opposed by not only by Western intellectuals, but also by Indians of high stature. It was argued that India was a land of illiterates, and, so, unworthy of a democracy. Moreover, some framers of the Constitution believed universal adult suffrage to be an “impractical endeavour” (Biswanath Das) and some described it “as a dangerous weapon in the absence of education” (Thirumala Rao).

Khosla makes a probing excursion into the hidden moments of the past when India was throwing off colonial chains and struggling to claim constitutional democracy. Khosla’s rare ingenuity lies in simplifying such abstruse schema of democratisation with his wise observations. He candidly explores Indian faultlines and offers a realistic miniature of the process of democratisation.

He appreciates the revolutionary decision to provide universal adult suffrage that was supported by the Motilal Nehru Report in 1928. It was to be used as a form of education. By successfully defeating non-performing political leaders and electing different parties for central and state governments, our electorates have shown tremendous maturity in taking political decisions. Khosla is right in saying that universal adult suffrage was adopted knowingly and deliberately after considering all the implications of the new and bold experiment.

Also read: For the first time, India is seeing secularism go from a top-down decree to a street slogan

Not a borrowed bag

Many say the Indian Constitution is just a bag of borrowed constitutional principles. Khosla rejects this view.

He meticulously parses through the structural development of the Constitution. For instance, Khosla presents a simplified picture of the codification of the Constitution, which was an incredibly complex process of assembling laws after lot of deliberation.

Mere ‘thoughtless duplication’ of Western ideas and values would have not fit into the constitution of a country as socio-politically diverse as India. So, given these complexities of codification, the founders including “Ambedkar cautioned against constitutional arraignment that copied the West”. They adapted an extraordinary method to dovetail Western ideas with the asymmetrical conditions of India.

As an eminent scholar, Khosla provides cogent arguments on the many aspects of constitutionality — hybridity, fidelity, morality and institutionalisation of power. Khosla’s prowess is in how he unspools convoluted legalities in a simple manner. He eschews legal terms that might be difficult for a reader, and that becomes the strength of his book.

Also read: For CAA-NRC protesters, the Constitution is a talisman and preamble the war cry

A great equaliser

The book moves on to dissect other important factors in India’s democratisation and how democracy functioned as a great equaliser.

The striking feature of the Indian Constitution is its federal character, which appeared as a challenge to the founders. Khosla writes centralisation was preferred to localisation because that was “burdened by a set of practices that disabled individual agency”. As a hawk-eyed observer, Khosla doesn’t miss any contradictions.

He writes that after the end of colonial rule, “Indians would come to have a new understanding of authority” – although this new authority was imperative for the democratisation and the ensuing transformation of the socio-political apparatus of India. So, he unambiguously suggests that the citizen of the decolonised state “would be liberated through submission to an impersonal force that saw them as equal agents, and that liberated spirit would make possible socio-economic transformation”.

This book voyages into Indian polity and delineates its transformation from the colonial to the post-colonial period. Among the major issues of political democratisation, Khosla especially explores “the mechanics of presentation” through the political structure of the state. However, he believes that grappling with the issues of political representation was a bigger challenge to the founders. As Muslims and lower castes largely faced the problem of representation, Khosla unflinchingly accuses “India’s most serious minds” of being “complicit” in deepening the crisis of representation.

Khosla’s fiercely candid criticism adds to his unquestionable scholarship on the politico-legal aspects of constitutionality. As a result, India’s Founding Moment is his tour de force on the idea of constitutionalism.

Also read: How a case on Minerva Mills challenged and undid Indira Gandhi’s damage to the Constitution

Individual vs group rights

However, one may not concur with Khosla’s idea of group rights based on identity and his assertion that such identities were rejected by the framers in favour of individual rights. Framers opposed the identifying affiliations of caste and community, and provided for ‘citizenship that was free from predefined identities’ because had this been the case, minority rights under Article 30 like other rights would have been subjected to restrictions rather than being made absolute. In fact, the framers of the Constitution were conscious of the fact that individual rights like the right to equality, liberty, freedom of speech and freedom of religion were not enough because individuals cannot enjoy these rights if the group or community to which they belong to is stereotyped, ridiculed or subjected to humiliation. That’s why the right to culture and minority rights were guaranteed. Similarly, Khosla’s thesis that equality is a norm and affirmative action for the underprivileged was an exception goes not only against the spirit of the Poona Pact but is also contrary to Supreme Court’s interpretation of Articles 15(4) and 16(4).

The virtue of Khosla’s book is his objectivity and uncluttered coherence.

It’s not only for experts of law and politics, but equally important for all Indian readers. It’s a must-read for those trying to understand the commanding document in the middle of it all – protests, governance, citizenship and rights. No other book on the framing of the Indian Constitution gives us such an insight into how the framers make some bold experiments of democratisation even though the conditions were not really conducive. The book must be read by anyone who wants to understand the vision, philosophy and dreams of the founders of our republic. No future research on constitutional law will be complete without referring to Khosla’s book.

India’s Founding Moment is a rare insight into constitutional politics and democratisation of India.

Faizan Mustafa is the Vice-Chancellor of NALSAR University of Law, Hyderabad. The author thanks Mohd. Farhan, research scholar at Aligarh Muslim University, for his assistance. Views are personal.

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  1. Bold experiment indeed ..

    “[Protestors seem to be] refusing to be governed by a law they consider contrary to their sense of justice and to the foundational principles of the Constitution. They are going much beyond the Supreme Court’s highly technical, narrower and legal techniques of examining the constitutionality of parliamentary laws.”

    One hopes the author is correct in assuming that anti-CAA protestors are in fact doing that based on at least a reading of the relevant sections of the constitution. Because otherwise, it’s just identity politics at it worst.

    The author’s web series on legal awareness is excellent btw 🙂

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