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How often do you look around yourself and think, this was not supposed to happen?
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If you live in India, there is actually much reason to do just that, we were not supposed
#
India was not supposed to be the vibrant diverse democracy that it is today.
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Indeed, one of the core rationalizations of colonialism was, these people cannot govern
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And yet, here we are, a functioning democracy for over 70 years.
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And a big part of this is our constitution, which not only shaped our systems of governance
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and the rules of the game, but also shaped how all of us think about our country and
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Now, there is much that I find wrong with our constitution.
#
It does not go far enough to protect individual rights.
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It is way too long and that dilutes its utility, yada, yada, yada.
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It is also true that our constitution takes many elements from other constitutions and
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that a chunk of it is a reproduction of the Government of India Act of 1935.
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It is also true that some of the values it pays homage to could be called enlightenment
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values and many of the founders were influenced by great thinkers of the West.
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But it is not, as many have alleged in the past, a copy-paste job.
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The impetus behind it, what the author Madhav Khosla calls, quote, the cultivation of democratic
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citizenship, stop quote, was unique to our circumstances and no aspect of our constitution
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was blindly copied from elsewhere.
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There was much debate, much thought given to every element of our constitution, not
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just the what, but also the why.
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And these debates are fascinating for anyone who wants to understand not just this imperfect
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and mutating document that is our guiding light, but also why it is the way it is and
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why we are the way we are.
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Welcome to the Scene and the Unseen, our weekly podcast on economics, politics and behavioral
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Please welcome your host, Amit Verma.
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Welcome to the Scene and the Unseen.
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My guest today is Madhav Khosla, who has written a wonderful book called India's Founding
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Moment, a remarkable work of scholarship that made me look at our constitution and our history
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At a personal level, the fact that Madhav is here is an illustration of how my own intellectual
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curiosity is driven by the show.
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It was Srinath Raghavan, a frequent guest on the Scene and the Unseen, who first recommended
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Madhav's work to me and insisted that I must read him and indeed invite him to the show.
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Another frequent guest, the constitutional economist Shruti Rajgopalan, told me that
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Madhav is India's finest historian of the constitution.
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And when I read India's Founding Moment, I realized that some of the things that I have
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said and thought in the past about our constitution and our history was not as nuanced as it could
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I felt as if my brain expanded when I read this book.
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And indeed, that's the exact purpose of the Scene and the Unseen.
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Before I begin my conversation with Madhav though, let's take a quick commercial break.
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If you're listening to the Scene and the Unseen, it means you like listening to audio and you're
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That being the case, I'd urge you to check out Storytel, the sponsors of this episode.
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Storytel is an audiobook platform that has a massive range of audiobooks from around
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Their international collection is stellar, but so is their local collection.
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They have a fantastic range of Marathi and Hindi audiobooks.
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What's more, I do a weekly podcast there called The Book Club with Amit Verma, in which I
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talk about one book every week, giving context, giving you a taste of it, and so on.
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Download that app and listen to my show.
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And as long as Storytel sponsors this show within this commercial itself, I will recommend
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an audiobook that I liked on that platform every week.
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My recommendation for this week is Invisible People by Harsh Mandar, a collection of stories
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about unsung heroes of India who are otherwise invisible to us, often because of their class,
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Invisible People by Harsh Mandar, download the Storytel app or visit Storytel.com.
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The word is Storytel with a single L, Storytel.com.
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Madhav, welcome to the Scene in the Unseen.
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Madhav, as we, you know, before we begin talking about your book, tell me a little bit about
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Like, are you into law?
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How did sort of all of this happen where, you know, you got drawn to firstly this field
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and then to this specific subject of inquiry?
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I studied law as an undergraduate at the National Law School in Bangalore and I then studied
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law at the graduate level at Yale.
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And it became clear to me at some point that a lot of the questions I was most interested
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in could not be answered entirely through legal training, that in some way law necessarily
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interacts with a set of other disciplines.
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And because my primary interest was in constitutional law, the most obvious cognate field
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was political theory because constitutional law engages with politics in a profound way.
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And political theory gives you the skills and the training and the knowledge to think
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about the deepest questions in politics.
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And so it just, it kind of became a natural step that I would go into a PhD in political
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And you got into law, you got interested in political theory, but your book is also a
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So how does that happen?
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When you realize that not just historical reading, but then if you want to also write
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about this, which is one way of expanding your own understanding, then you also have
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to sort of get into history.
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Did you come to history out of the love for history or out of necessity?
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I mean, I think I came to it actually out of an interest in thinking about how ideas
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had changed and had traveled over time.
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So when you're studying political theory, one of the things that you think about, and
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when you're a student in those ways, is you think about certain concepts, right?
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Equality, freedom, democracy.
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And the interesting thing that you might ask is what do these terms mean over time?
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What do these terms mean to different people?
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And so a lot of my questions began to have a historical texture to them, a historical
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And so I wouldn't say that I'm a professional historian in the straightforward sense of
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the term, but I would say that I'm somebody who's interested in the history of political
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And so it's very much an intellectual history or a history of ideas that really in some
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sense sparked my curiosity.
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And who are the sort of the thinkers who influenced you or as you, you know, got deeper and deeper
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What are the books that you looked at as models of the kind of work that you'd like to do?
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I think if one thinks about India in particular, I think the most familiar thinkers who we
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have who do a kind of intellectual history or history of political thought are people
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like Pratap Bhanu Mehta, Sunil Khilnani, Nija Gopal Jayaal.
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And I think slightly more limited to the scholarly domain and less familiar in popular writing
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is somebody like Sudipto Kaviraj.
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And what all of these people are doing in some way is to think about, look, you have
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a concept and what does that concept mean to specific people at particular moments in
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time and how can we recover certain understandings of that concept?
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If I actually can read about what somebody like Nehru thought about citizenship, can
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that help me think about citizenship today, right?
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Can that actually elucidate the concept in some way?
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And I think each of these people have done that and so Sunil's idea of India is just
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a marvelous attempt to think about the particular idea of democracy or the particular idea of
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how you domesticate a certain ideal within a broader public life and within political
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I think Nija's book on citizenship, for example, is a way to think about varying definitions
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and conceptions of citizenship over a hundred years, right?
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And she is a political theorist, but it's a history of ideas, which is what she's interested
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And Pratap, we read week after week who's attempting to do that.
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And Pratap is absolutely India's finest public intellectual, I think.
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And just referring to Nija's book, I hadn't read it until I was going to do an episode
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on citizenship with our mutual friend Srinath and it spoke so much to the current time.
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Suddenly your expanding of the current time just explodes and you get everything so much
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better because of a book like that.
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I also want to ask you about your reading and your writing to begin with reading.
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Like I often get asked, how do I read so many books and do I take notes?
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Do I scheme, et cetera, et cetera?
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And you obviously read far more than me.
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I mean, while reading your book, one of the joys of reading your book was the ability
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to go to the footnotes and discover other things through that.
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And I think any good book of history or nonfiction gives you that.
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So how do you read, you know, do you have to ever force yourself to read?
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Has the nature of the way you read changed since you became a scholar and a student yourself?
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Is there a difference between how you read for work and how you read for pleasure?
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What's your relationship with books like?
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I think at least to me, I feel I read quite badly, right?
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I feel I don't read enough and I don't concentrate enough when I read.
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But I think I don't read in very long spurts.
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I actually lose attention relatively quickly, but I try very hard to actually read very
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seriously and very carefully when I read.
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And so I normally never really need to read twice.
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And you take notes and stuff while reading?
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I do take notes sometimes.
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And sometimes I just have page numbers, but I often am able to grasp what I'm reading
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with relative ease if I am in the right frame of mind, the challenges in getting into that
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frame of mind and is actually taking out a sufficient amount of time to being able to
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I think in some ways the hard chat, the hard, I mean in our lives now today, right?
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It's quite hard to actually be able to turn off the internet and turn off the mobile phone
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and then just say, okay, I'm having an hour of completely uninterrupted reading, which
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is the kind of thing that I hope for.
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I think the other thing that can sometimes be challenging is that you don't often know
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And so even with this book, for example, part of what was difficult was we've only had one
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book on India's constitutional founding before this.
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And so there were moments where on different themes, I didn't know actually what to read.
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And then you just read more and you get to know what to read, right?
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But my life in terms of reading is not profoundly structured.
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I read less than I would like to, probably more than I think I do, but it's disorganized.
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It's profoundly disorganized and I think it could be much better.
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And when it comes to writing, a lot of academic writing is just hard to read and it's dense
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and so on and so forth.
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Your book obviously isn't that.
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In fact, there were parts while I was reading this book and I think I told you this before
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the recording and you were slightly embarrassed, but there were times when I felt the quality
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of your prose reminded me of Pratap, which is the highest praise I can give really in
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the sense that you're packing in a lot of thought and a lot of material into, you know,
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with a tremendous amount of clarity.
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And even though you also write long sentences like Pratap often does, you know, they're
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not unwieldy and long winding.
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They're packing in a lot.
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It all makes complete sense.
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So is that, you know, is pro style something that you thought consciously about on your
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journey to becoming a writer on these matters?
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And I'm actually really flattered and humbled that you would identify the prose as being
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good because I, so I spent a lot of time rewriting this book, frankly, a lot of time, and I spent
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a lot of time removing huge amounts in it.
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And so the final book actually had about 20, 25%, even maybe 30% less than I had lying
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And the hope was, and the aim was that, look, I much rather just say less than more.
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And some of that is laziness.
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Some of that is just a way to like intellectually flirt with ideas.
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But I also just didn't want to overwrite.
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And I am very interested in how people write and in what, rather than just what they write.
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And so I cared a lot about that.
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And most of the writers I admire are just beautiful writers.
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I mean, I think Sunil is a great example.
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I think globally, I love David Bromwich's writing.
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And just there are a range of nonfiction writers who just, who are genuine stylists, right?
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And so I think that that's, I don't know if the book has that, but certainly I aspired
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to make at least parts of it beautiful to read.
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Let's kind of move on to the book now.
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And let's sort of move on to the conception of India itself and the role that our founders
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played in thinking about it.
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And you begin your book with a quote from Nehru where he says, one of the unfortunate
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legacies of the past has been that there has been no imagination in the understanding
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of the Indian problem, stop quote.
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So what is this Indian problem?
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It's an interesting quote if you think about it, right?
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I mean, it's the quote comes up, the moment comes up in the Constituent Assembly, Nehru
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is speaking and he's suddenly saying that, look, actually we aren't grappling with the
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situation that we are in because nobody really has realized the challenge before the Constituent
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And it's an odd thing to say, right?
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Because if you think that, if you were to guess anything, you would say that nobody
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would have a deeper sense of the situation than those people there.
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And for Nehru, the Indian problem was, and it's interesting also that he calls it the
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So the first thing to say about that is that he sees something distinctive going on, right?
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It's not just the problem of another country or the problem of some particular idea.
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It's actually an Indian problem that no country has previously been asked to solve.
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And the Indian problem for him is the problem of how do you create democracy in a place
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without its preconditions?
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So you have internalized for well over a century that there is actually a certain set of circumstances
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that make democracy possible.
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And India doesn't have those circumstances and yet it needs to become a democracy.
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And how do you then address that problem?
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And you also at one point, and I like the phrasing of this, you point out, you talk
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about the suggestion that human behavior was not the consequence of politics, but instead
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And later on you asked a question in the context of the Hobbesian project, quote, did politics
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produce these spaces of energy, these fresh ways of thinking about freedom or was politics
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And these seem to feed into Nehru's question in a sense of Nehru really seems to be asking
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is that, look, we have to now move towards being a democracy, but none of those conditions
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Most particularly the democratic citizen isn't there.
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So in the act of creating this democracy, can we create that democratic citizen?
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And is the constitution the tool to do that?
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Am I right in saying that this is a fundamental sort of question?
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If we go back to the part that you read, I mean, the way to think about it is this, right?
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After the 19th century, you have around you three things going on.
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You have politics as some space, right?
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You have the economy as some space and you have society as some space.
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And all these three are slightly governed by a kind of different logic, right?
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So society say might have its own kind of relations.
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It might have its own kind of power dynamics.
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It might have its own kind of freedom.
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The market again has its own kind of logic, its own kind of structures, its own kind of
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And then there's politics, which is again governed by its own rationality.
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And this distinction between the three really comes out in the 19th century, both with the
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industrial revolution and with the birth of actually sociology.
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And what happens for people is that they begin to ask, and it's a natural question.
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It's not coming out of deep seated Western racism.
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It's actually coming out of a very honest inquiry.
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They begin to ask that look, is politics going to rest on how these other spaces are or is
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actually politics producing these spaces?
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Is the caste system the consequence of the political structure we inhabit or is the political
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structure we inhabit going to take a certain shape because of the caste system?
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And that is not an easy question to answer.
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And the British answer to that was, look, because India has a certain kind of society,
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it can only have a certain kind of government.
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And the Nehruvian sort of answer, which places politics front and center, and the Indian
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answer is that, look, actually everything that you've gotten is because of the politics
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People are behaving in a certain way because you've actually put them in structures where
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they will behave in that way.
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And a version of it, for example, is in contemporary India, just to sort of switch for a moment.
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Sometimes people will say, look, there are communal people.
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This is why we have a communal politics.
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And one answer to that is actually you run a communal politics, you get a communal people.
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You run a secular politics, you get a secular people.
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And that's kind of the answer here in some ways.
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So there are sort of two aspects to this which I find interesting.
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One of course is that I would sort of agree with Nehru that obviously, though he would
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not have phrased it like this, but people respond to incentives.
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So if you create a form of government that creates certain sets of incentives, people
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will necessarily respond to that.
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In fact, my thesis of, you know, Jagdish Bhagwati had once said that Indians are more into rent
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seeking while the Chinese are intuitively more into profit seeking.
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And that sense of why Indians are more into rent seeking, that is, we are always looking
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for ways to make a fast buck or cheat someone or whatever, is that because the oppressive
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state made it so hard for so many decades to earn an honest living and because it was
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the easiest way to make money was through rent seeking and was through sort of becoming
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a part of that structure, people instinctively think in those terms.
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And you could say that is people responding to the incentives of the system of governance
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And this can work in the other direction.
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I mean, I gave a negative example, but this can work in the other way also where you can
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promote fraternity and, you know, much more tolerance just through what the law happens
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to be and how it's all structured.
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But the counterpoint to that would be that, you know, and a point that where Gandhi, for
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example, disagreed with Nehru and Ambedkar and where conservatives would disagree and
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you had the same argument playing out elsewhere between Burke and Paine and so on, is that
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Gandhi sort of felt that the locus of change was society itself, that change would only
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And Nehru and Ambedkar, on the other hand, felt that no, you know, it's the diseases
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such as, I mean, caste is a disease in our society and the diseases are so deeply rooted
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that that change cannot happen from the bottom up, the state has to sort of lead the way.
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And so this is the sort of debate that's playing.
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This is one of the fundamental debates that you've sort of identified playing out, isn't
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I think that debates about a strong centralized state in the ultimate analysis are debates
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about very different conceptions of Indian society, right?
#
So Ambedkar and Nehru are fierce critics of Ambedkar, of Indian society.
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And it's in part their criticism of Indian society that makes them so radical.
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Gandhi, on the other hand, is to an extent critical of the practices of Indian society,
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but he also believes that the change will come from within, that the change has to come
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from within and that actually enduring change will rest on certain kinds of practices.
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It will rest on genuine examples that you have to provide in your social life that will
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And both of them, therefore, there isn't really a meeting point for people whose presuppositions
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are so distinct about the dynamic and the theory of historical change.
#
And one question I've asked many guests on the show, so it will almost seem like a cliche
#
to my listeners, is something that I feel you're best equipped to answer, which is
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that it seems to me that what we did, and that speaks to this earlier debate which we
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mentioned between conservatives and people who would want to use the state to transform
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society, which is that what we seem to have done is we seem to have imposed a liberal
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constitution on an illiberal society.
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And one could ask, is that imposition itself liberal, but a more pertinent question in
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current times when many people say that society has caught up with politics and that our illiberal
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society is now reflected in the sort of politics that we have, is that can such top-down imposition
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of values ever actually work?
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So that's a very packed question, right?
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And let's separate it at multiple levels.
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So the first thing to think about is, do we actually think it's true that we've imposed
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a liberal constitution on a people who are not liberal?
#
Because the word imposed there is very interesting, right?
#
And I'm not sure that it's actually a very good word to use for the following reason.
#
On the one hand, clearly the people who were in the Constituent Assembly had a vision of
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India that was not the current vision of India.
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That is the whole Indian problem, right?
#
They needed to create democracy and India was not filled with democratic values and
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constitutional principles.
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In that sense, they were radicals, they were revolutionary.
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But the Constituent Assembly enjoyed extraordinary political legitimacy.
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Even though the body was not actually voted in through universal adult franchise, it was
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unquestioned in its authority and in its leadership.
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In that sense, imposed has a slightly more authoritarian cast to it, which I'm not sure
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actually is accurate given the real power that the Assembly enjoyed.
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In fact, if the Assembly didn't enjoy that power, you wouldn't have gotten the constitution.
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I mean, it's not power, but I'd say the key word there is not power, but legitimacy.
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And I'm willing to concede that it had legitimacy, that these were the recognized leaders of
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They had won elections before under the British.
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So I don't have an issue with that.
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But I think that any constitution they came up with would have been an imposition, not
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necessarily this one and a necessary imposition because there's no other way of doing it.
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I mean, so we can quibble about whether the word imposition is right.
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I'm not sure whether it's the correct word.
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And I think the other thing that we need to remember is this, that the constitution puts
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forth a really relaxed procedure for amendment, a really relaxed procedure for change.
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The constitution is given in 1950.
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In 1951, you have elections, the whole country can vote.
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For the first time in human history, you're granting universal adult franchise under these
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conditions and the body that is voted in could have gotten rid of the constitution.
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So in that sense, it's a genuinely democratic moment, right?
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And the second question, right, which is that look actually has society caught up with politics?
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I actually think, ironically enough, the present moment reveals just the opposite.
#
I think the Indian founding was built on the idea that to be in the modern world, right,
#
as opposed to to be in the ancient world or to be in the medieval world means that your
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world can be entirely constructed.
#
It means that when Amit Verma is born, he could be any type of person.
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His job, his identity, his role in life are subject to change at an individual level.
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And the whole world can be made and remade.
#
And what politics offers us is a way to make and remake our world through nonviolent means,
#
Now, the interesting thing about the current moment is that actually, I think even though
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the current Indian, the dominant mode of Indian politics at the moment, the Hindu nationalist
#
movement is very different from the founding vision and could not be more different from
#
the founding vision, they share this belief that the world can be entirely remade because
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they are actually attempting to remake it.
#
If they didn't want to remake it, if they didn't actually think that if they didn't
#
act, if they thought that the world was already like this, then there's no need to remake
#
And if they thought that it could not be remade this way, then there's no need to remake it.
#
They believe in the absolutism and the primacy of politics as much as anything.
#
It's why they are changing our laws.
#
So isn't this belief in remaking the world actually a very dangerous belief?
#
I mean, we've seen this in the 20th century and Mao and Hitler and Stalin and so on.
#
And in fact, when Modi did demonetization, I compared it with Mao's Great Leap Forward
#
and what Mao did with the Sparrows, you know, isn't this kind of social engineering always
#
doomed to fail and equally disrespectful of the society you're claiming to represent?
#
For example, just as you said, if I may add to that, just as you said that the founders
#
of our constitution were radicals, in a similar sense, it could be argued that the Hindu nationalist
#
movement today are also radicals because they are chipping away at the tolerance and inclusiveness
#
that is such an inherent part of our society.
#
I think that that's right.
#
I think that in a way they are radicals.
#
I think that it doesn't mean that you're disrespecting society because it's all done through social
#
So I don't think that's quite right.
#
I think that the question isn't, is it dangerous or not?
#
It is dangerous, Amit, because in the same way as it is dangerous to rule yourselves,
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that's what it means to be independent.
#
That's what it means to have freedom.
#
When I look at you and I say, Amit Verma, you can have any career you want.
#
If you work hard and I give you the right education and you pick your career, is that
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You could do a terrible job with it.
#
No, I think there's a conflation here.
#
My belief in individual rights and in my agency to shape my own destiny is very different
#
from the freedom of a society to sort of, or the freedom of a political class to transform
#
But I think that that's what it means to be democratic.
#
It's collective agency.
#
The question then is twofold.
#
Firstly, what are the processes by which we engineer?
#
And so for instance, the Indian founding is a dramatic effort to engineer things through
#
civil nonviolent means, right?
#
So even things like modernization, which I discuss in the book, they are clearly impressed
#
by and who wouldn't be at the time by Soviet Russia's extraordinary economic growth.
#
But they think that there are serious problems with the means and we care about the means
#
because the means themselves are constitutive of freedom.
#
So there's one question, which is the question of how are you engineering?
#
And the second question is to what end are you engineering?
#
And are you actually engineering towards an end that still treats people as free and equal
#
beings because the whole purpose of actually giving freedom is that you're treating people
#
as free and equal beings in some way, right?
#
And so I think that the danger of the present moment isn't that they're trying to remake
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I think everybody's trying to remake the world.
#
In fact, I think that the most gratifying and reassuring thing about politics is that
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it can be a space for possibility.
#
I think what's scary is how they are doing it and what they are doing it towards, right?
#
In fact, I think it's not only, and I think what that captures is that in politics, Amit,
#
what's dangerous is not only extremism, but cynicism.
#
I think it's cynicism above all, and I think on India's left, for example, or on India's
#
a lot of other Indian political spectrum, that's the danger, right?
#
For instance, why is our caste arrangement moved from a constitutional arrangement that
#
wanted to transcend caste to a situation now where it is simply power sharing between different
#
Because you don't think caste can be eradicated.
#
So that's cynicism, and that's actually what's dangerous.
#
So what's dangerous isn't that these guys want to change the world.
#
What's dangerous is what they want to change it to and how they plan to change it.
#
Well, yeah, I mean, but that's also a disagreement on ends and not so much a disagreement on
#
Let's kind of get back to your book where you write about, you know, how one of the
#
fundamental decisions in hindsight, it kind of, we take it so much for granted, but one
#
of the unusual decisions that was debated and was a question of universal suffrage.
#
Tell me a little bit about the contours of that particular debate.
#
So I think to think about that, Amit, what we need to think about is that, look, in the
#
middle of the 20th century, you have to be really audacious to think that India can be
#
A, for 100 years, you've had this kind of political theory and philosophy.
#
You've had this imperial vision that India cannot rule itself.
#
Then you've had alongside that, right, a real life experience of democracy going wrong.
#
So the only moment in world history where democratization and constitution making occur
#
simultaneously is in Europe during the interwar period and all of those countries collapse.
#
All of those countries actually don't end up becoming democracies, right?
#
And so there are very good reasons at India's founding to think, look, democracy isn't really
#
a very good system to go for and they still go for it, right?
#
And I think that they go for it for a variety of reasons, right?
#
One, I think there is genuinely a mass movement behind independence.
#
Second, there is the sense that actually this is what freedom means.
#
There is a deep ideological conception that look, in an earlier generation, in the late
#
18th century, when you had the American and French revolutions, you didn't have to worry
#
about how certain people will vote because you didn't give them the vote.
#
Now actually, they think that, look, that can't mean freedom.
#
Freedom can't just mean that I'm free from Britain, but I'm not giving my Indians the
#
And there's a sense that, look, in the Indian context, actually, what does that mean?
#
In fact, there's a great moment in the Constitutional Assembly debates, I think, where Alladi Krishnaswami
#
Iyer says, look, what does it mean to limit suffrage in a country where most people are
#
That means nobody will have suffrage at all.
#
I think his point, as you've quoted him in the book, is that if you, you know, qualifications
#
based on property or education are impossible because most people have neither.
#
And I think it's, but it's also the deep seated ideological vision that actually, if you put
#
people in a certain kind of system, you will get democratic people, that actually you will
#
create democratic citizens through the practices of democracy, that itself will provide the
#
And therefore, it doesn't mean that certain facts are false, right?
#
So of course, it's true that India is a diverse place.
#
That is true both for the British and for now.
#
The question is, what does that mean for political life, right?
#
And the answer is actually, it may not mean anything.
#
You can still see each other as equal people if you put them in a politics that shapes
#
And so at the heart of the book, I think, and at the heart of the Indian founding is
#
the sentiment that look, representation will create its own reality.
#
The minute you represent people in a certain way, the minute you actually put them in a
#
kind of constitutional, legal, institutional model that represents them in a certain way,
#
you will actually get the people you represent.
#
And this struck me as one of the sort of profound insights that I learned from your book, which
#
is that the framers of the constitution looked at it as a pedagogical tool.
#
It wasn't simply a question of saying, okay, we have to govern and therefore we will have
#
a constitution that sets the rules of the game.
#
Instead, the impetus is that through this constitution, because people respond to incentives
#
and again, that's my language, not theirs, obviously, that through this constitution,
#
because people respond to incentives and to the system that they are part of, if we frame
#
a constitution correctly, then the citizen can learn to see himself as a democratic citizen
#
and equal to all other citizens, you know, therefore invalidating other sort of forms
#
of identity that might otherwise exist.
#
And therefore, in that framing, it's important to embody that sort of conception of how the
#
founders saw the country.
#
And this seems to give the lie to what, you know, the traditional notions of the constitution
#
that you've referred to as being, as you say in your book, quote, a series of self-interested
#
compromises and arrangements between the Raj and locals, stop quote.
#
As if it was just happenstance, as if it emerged piecemeal, take this from there, take this
#
from there, but no, there's actually this sort of unified thinking going on behind it.
#
I think that it's both a coherent, cogent project and it's a radical project.
#
And you know, one of the things, Amit, that's been very interesting, right, is look, it's
#
2020, it's 70 years of India's constitution.
#
And you only had one book on the founding, a book in 1966 by Granville Austin.
#
Now, when I began writing this book, my interest was that, look, Granville Austin has done
#
an excellent political history in a straight up way.
#
This person entered the room, these were the amendments, these were the debates, this was
#
But there was very little in Austin's book about the broader intellectual history at
#
the level of concepts and ideas and the general terrain of actually what made this special.
#
In a global way, there was relatively less.
#
Now, I began thinking that, look, there must be relatively less because actually there's
#
not that much to say, right, like the road is less traveled for a reason.
#
Sometimes many topics have only one book with good reason.
#
Actually they should have, most topics should have zero books.
#
And the thing is that I then realized that, look, in part what's happened is people have
#
said one of three things.
#
They've either said that, look, there's nothing special about this constitution because it's
#
the Government of India Act 1935, which I think is completely wrong.
#
The second thing that some people have said is that, look, actually there's nothing special
#
at the level of ideas because it's just self-interested people who are just striking bargains, which
#
didn't make sense to me because you're going into the assembly and you're granting universal
#
suffrage and the next year you could be out.
#
So there's clearly something else going on.
#
And I think ideas do matter.
#
I think historical events are shaped by a combination of many things, incentives, structures,
#
circumstances, ideas, but ideas do matter, right?
#
And that's an assumption in the book that actually people do have beliefs.
#
And the third thing is that some people think, look, it doesn't matter because India didn't
#
have a revolution at all.
#
Actually the site of revolution is never the political, it's always the social, it's agrarian
#
structures, it's economic structures, so on and so forth, and there the implicit contrast
#
And the thought is that, look, China had a revolution and India didn't.
#
And clearly that's not what my people think, right?
#
The people I'm working on and the people I think about.
#
And I also don't think that that's true.
#
I think that the constitution did transform India.
#
And I think both Nehru understands that and the current government understands that.
#
They both want to change the constitution.
#
And that you would only change something if it matters.
#
Nobody kicks a dead dog.
#
And so I think that when I explored the reasons why this had been so understudied, it struck
#
me that there was actually something waiting to be written.
#
And what was waiting to be written was exactly what you said, is that this is a moment where
#
you have to create a democratic citizen through democratic politics.
#
In every other country, you have a level of education, social harmony, administrative
#
systems increasing, wealth, income rising, and the democratic citizen, which is to say
#
the person who behaves in a certain civic way, actually emerges.
#
And then you create democratic politics.
#
Here, we have to create the democratic citizen through democratic politics.
#
What are the systems that are going to make people behave in one way rather than another
#
And you have this intriguing sentence in your book where you say, quote, a feature of this
#
conception, which is a conception of democracy and the constitution, a feature of this conception
#
was that popular authorization, that is the exercise of the vote, was necessary but insufficient
#
for a political system to have legitimate authority.
#
You're saying then to build this democracy, the vote is necessary but insufficient.
#
What completes the picture?
#
So I think actually, this is a really important question today because one of the things that
#
a lot of people are grappling with today, and I get asked this a lot, is look, India
#
is still democratic or is it like democracy versus the constitution?
#
Like in our current protests, you've had a number of people picking up images of the
#
constitution, reciting the preamble.
#
And so the question is, is there some clash?
#
And I don't think there is a clash, actually.
#
I think that both people are articulating very distinct visions of democracy.
#
At the heart of the founding, it's the thought that look, to be in a democracy means in the
#
first instance that you actually elect those in power.
#
And why is that not enough, right?
#
Because if that's enough, then we don't need to have the constitution at all.
#
We just need one provision which says elections every five years, people vote, end of the
#
And the reason why that's not enough is because the question arises, once people vote and
#
an outcome is generated, why should I actually accept that outcome?
#
What gives the state legitimacy?
#
So the state, for example, has certain amount of exclusive legitimacy and a certain amount
#
If the police come to your house and arrest you, as opposed to some goons, you think that
#
the police speak with a different kind of moral and legal authority.
#
Now the question is, what gives them that?
#
And the answer is that what gives them that is that firstly, we believe that they have
#
been put in place through a certain process, right?
#
So we have elected people in power who are governing the police.
#
But the second is at the level of outcomes that those systems are actually treating people
#
as free and equal beings.
#
Because if they are not, I have no reason to accept it.
#
The state cannot claim moral authority over me unless it treats me equally.
#
And so the whole question in the constitutional assembly is, I'm going to create a state,
#
I'm going to create authority, and I've had illegitimate authority for 200 years.
#
And what would it mean to actually create a system that not only grants the right to
#
vote, but can justify the authority of the state, that can actually treat people as free
#
What would the meaning of that be?
#
And the whole constitution in some ways is an effort to work out that notion, right?
#
What are the structures of power that would make people behave in certain ways such that
#
the outcomes generated would be free and equal?
#
So this sort of brings up a question which arises later in your book, but I'll ask it
#
now about the clash between the two schools of thought and constitutionalism, that is
#
legal constitutionalism and political constitutionalism.
#
The legal constitutionalists believe that the key job of the constitution is to lay
#
down rules of the game and act as a restraint on power, and to make sure that the state
#
does not overstep its limits and that it protects the individual rights of its citizens, whereas
#
political constitutionalism holds a view that no, the state must do more than that, and
#
the state must actually change or improve society as it were, depending on where you
#
And this was also a fundamental clash at the founding, and there were people who argued
#
for both, and there are people who still today could say that we have one or the other.
#
Can you take me a bit through those sort of debates on this?
#
Yeah, I mean, the way I think slightly different to how you describe it, only in the following
#
way that people who want, that some people see the constitution as merely an articulation
#
of democracy, right, that it's just about voting, and some people see it as something
#
It grants you many more rights, it grants you many more freedoms, and so there's a kind
#
of limit on the democratic process in some sense.
#
And I think the way I frame it and the way they frame it is they say, look, what both
#
of these debates have presumed is they've already presumed a kind of democratic citizen,
#
And actually, even to exercise the vote, the reason why we think certain constitutional
#
principles are important is because we think that that is actually essential to democracy
#
So let's play it in a very simple and tangible way.
#
For example, assume that you think, look, the current government is justified in everything
#
because it has been voted into power, okay?
#
And that would be true for any government voting.
#
Let's just say you take that view, right?
#
Then the question arises, okay, if that's true, what does that entail?
#
That entails that firstly, if it's everybody has the right to vote, okay, that means that
#
you need to have a system where actually votes are counted fairly, yes.
#
That means that you actually have to have also a system where people can campaign equally
#
That means that people, you should also say, if you care only about voting and only about
#
those processes, that people have to be able to deliberate during the process because then
#
they can only then they can vote freely.
#
They have to be able to read and write.
#
They have to be able to think about the choices they are making.
#
If you do all those things, you get a lot of freedoms anyway.
#
And then the question arises, okay, the government is legitimate because it is voted in.
#
Is it then legitimate for it to say that X group of the population are no longer on the
#
You could say, no, that may not be right because it needs to still preserve the process of
#
So it can't disenfranchise anybody, right?
#
But the question is, okay, if it can't disenfranchise, what else can it not do?
#
Can it stop them from talking?
#
Can it arrest them without?
#
So a lot you can get in by just realizing that even to express sovereignty, you need
#
certain rights and conditions.
#
And the problem at the Indian founding is those rights and conditions and that knowledge
#
and understanding doesn't exist in Indian society, right?
#
The ultimate thing is that you think when people vote in a genuinely democratic society,
#
they are thinking about the common good, they are thinking about the collective good.
#
They are not seeing you as belonging to X village, Y caste, C religion.
#
They are actually seeing you as citizens.
#
That's what it means to have a democratic sensibility, right?
#
That you actually become a different kind of person in how you see the other person.
#
And the question at India's constitutional founding is what kind of apparatus, what kind
#
of computer program can I put the people in that they begin to see other people like that?
#
What system will change that?
#
Because in our current politics, they only see people like that, current politics at
#
And that cannot enable democracy because that cannot enable a common good and that cannot
#
enable a sustainable political environment.
#
So what you're saying is that even if the argument for legal constitutionalism were
#
to be true, that a government should exist only to protect the rights of democratic citizens
#
and not actually try to reshape society, the argument cannot hold unless you actually have
#
And a democratic society.
#
And therefore the constitution has to venture beyond mere legal constitutionalism.
#
Completely, I mean, a lot of the debates in the West are debates that have already presumed
#
a certain level of society, right?
#
I mean, you see this, for example, even in our debates in the West around things like
#
You may say, oh, if I have a perfectly ordered society, you know, is it okay to let people
#
I mean, the question is how do you get a perfectly ordered society?
#
That's the puzzle, right?
#
Let's sort of talk about now, you know, you've got three chapters and you're looking at three
#
thematic ways in which there were ideological arguments about what the constitution should
#
And the first argument is about codification.
#
Now obviously we have, everyone knows the longest constitution in the world.
#
It is an unwieldy beast.
#
You know, you can fit the American constitution into the pocket of your shirt, but you cannot
#
really do that with the Indian constitution unless you have some pretty mighty pecs.
#
And this is not something that sort of like, as some may presume happened by default that
#
everybody just put in whatever they wanted and you ended up with something really long.
#
There was a reasoning for this.
#
There was a debate behind this.
#
Tell me a bit about that.
#
And no, so I think, I think you're absolutely right.
#
I mean, my, you know, years ago I wrote a short introduction to the Indian constitution,
#
which I think is shorter than the document, right?
#
And so somebody suggested to me, oh, you should have an appendix to the book with the constitution
#
as like you have no idea, like it's going to be double the length, right?
#
The constitution is long.
#
And the question, the most elementary question to ask is why is all this stuff there, right?
#
Actually why is, why are all these things in the constitution when you, other constitutions
#
And the most easy way I meant to think about this or to understand it is that in other
#
countries all of those norms are already a given, whereas in this constitution you are
#
operating under the fear of profound uncertainty after popular authorization.
#
The question is that you suddenly are going to have voters, judges, legislatures, members
#
of the executive, all now operating under conditions of popular authorization.
#
And you have absolutely no idea how they will behave.
#
And the key thing is they don't know how to behave.
#
And so codification is an attempt to actually explain and develop the meaning of certain
#
rights, of certain responsibilities, of certain rules.
#
It's to add texture because nothing can be given.
#
I mean the way to think about it is that suddenly you're putting some people in a room and you're
#
asking them to speak a new language.
#
What is the first thing you have to do?
#
You have to give them a very long lecture on grammar and that is basically what codification
#
It is an elaboration of the grammar of democracy and constitutionalism because that doesn't
#
And so I need to put all that in the document.
#
And there were objections raised at the time that look, a lot of these things that you're
#
detailing out are things that legislators should do or that the executive should do
#
Why are you laying these rules out there?
#
And the counter argument was that look, there is no established practice of doing all of
#
these things either in the legislature or the judiciary or whatever.
#
So you want to lay out as many details as possible.
#
That's broadly the sort of thing.
#
That's broadly the thing.
#
And I think that the sense is also that look, in previous countries, legislatures and executive
#
have done it already with certain preconceived ideas, right?
#
I mean, there were some attempts in the constitutional assembly to think you're actually limiting
#
future legislators or none of that I think is actually true.
#
I think you're just making explicit what a society lacks as being implicit.
#
And there was criticism even at the time that it was just increasing the coercive power
#
And for example, Somnath Lahiri said, quote, none of the existing provisions of the powers
#
of the executive have been done away with, rather in some respects, those powers are
#
sought to be increased, top quote.
#
And he later said something to the effect of how the constitution looks like it has
#
been written for a police constable at that level of detail.
#
There are two things, right?
#
One is there are criticisms across the board, right?
#
And that's one of the fascinating things about the constitutional assembly debates, right?
#
If you read the constitutional assembly debates, there's a lot of random stuff going on.
#
But what's heartening is the amount of intellectual diversity.
#
Now, the specific part that you just read out was a part negotiating a very peculiar
#
feature in the constitution, which I think a lot of us are familiar with, is that certain
#
rights are recognized, say the right to free speech, and then there are certain exceptions
#
And one of the things that was said at the assembly and is often even said today is that,
#
look, what is the meaning of this?
#
You're giving the right and then you're giving these exceptions.
#
Now, what was the answer in the assembly?
#
The answer in the assembly was, look, this right has been limited in every country.
#
We are not doing anything new.
#
Even in America, which is massively invested in free speech, there are limitations.
#
You have two options available.
#
Either you recognize the right and then you leave the limitations to legislatures or the
#
judiciary, or you actually agree on certain established principle limitations and you
#
And what that does is that doesn't limit the right.
#
If anything, it might even limit the limitations because you can then say that, look, you can
#
actually only limit it on these particular grounds, right?
#
If you leave it open, tomorrow parliament or the judiciary could impose 10 other limitations.
#
So the codification exercise is neither increasing nor decreasing state power.
#
It's just explaining to you what free speech is.
#
And so their point is, look, free speech is meaningless if you just don't provide any
#
limitation or contours or boundaries or understanding of it.
#
And if you have those that are established and if we can agree on them, let's just do
#
them now because actually, otherwise you leave it to 50 years of litigation.
#
And one of the things that they do, right, on this issue, they engage hugely with American
#
And they say, look, if you see American cases over the last 50 years, over the last 20 years,
#
30 years, they have constantly changed their minds.
#
And if you can't trust a judiciary that has so much experience in common law reasoning,
#
what are you going to trust ours?
#
And so there's this fear of uncertainty.
#
And the sense is that, look, let's just put it in.
#
And the idea actually, Amit, that, look, the fact that there are limitations can also strengthen
#
It just turns on application is not some fanciful idea just by me.
#
So a few years ago, one of the most important and one of the rare decisions of the Indian
#
Supreme Court that really upheld free speech was a decision about Section 66A of the Information
#
Technology Act, which you might be familiar with, which had very wide provisions relating
#
to, you know, WhatsApping, email communication, so on and so forth.
#
And there were issues about its constitutionality.
#
And it was struck down.
#
And in the judgment, Justice Rohit Nariman gave an outstanding judgment where basically
#
what he said is he said, look, if this law is valid, it has to be valid under these specific
#
There's no other limitation.
#
So that's an example where having limitations also limits the grounds on which you can limit.
#
I think it's a very clever and cogent argument that by listing out the limitations, you are
#
actually putting a limit on the limitations and therefore you're increasing freedom and
#
I mean, what I want to say is that you are neither increasing nor decreasing.
#
For them, they are saying, look, to guarantee a right without telling you what the right
#
is, is to guarantee nothing.
#
You know, I find that a bit tenuous because just looking at the restrictions include things
#
like public order, morality and decency and all of those which are open to interpretation
#
and will inevitably therefore be interpreted by the state and by the judiciary, which it
#
seems is now captured by the state.
#
And the second implication of say not having something that is as absolute in a support
#
of free speech as say the US first amendment is that we still have various laws from the
#
Indian penal code on our book like 295A, 153A and indeed the sedition law, which is being
#
massively misused by this current administration and children and entire villages are being
#
booked under sedition, which really should not exist, but I presume they exist because
#
the constitution allows these limitations.
#
So firstly, I completely share your horror at the application of free speech in India,
#
I think it's a mistake to say that that's because the constitution allows it.
#
I think that the constitution actually doesn't allow it.
#
I think it's very poorly applied.
#
I think it's misapplied and I think that there's very little that the constitution can do about
#
It's very, these restrictions you will agree with me surely are very vaguely worded in
#
terms of public order, decency and morality.
#
These are open to interpretation.
#
I mean, they are open to interpretation, but because something is open to interpretation
#
doesn't mean that it's interpreted correctly, right?
#
That itself is open to interpretation, we can go around in circles.
#
But then the idea is that the rule should be so specific that...
#
But I don't think any rule can be so specific.
#
I mean, at the ultimate analysis, all of constitutional law and indeed all of law is forged in practice,
#
Or, I mean, if you could frame things with complete clarity, you would not have problems
#
of interpretation in anything.
#
In the books you read, in the music you hear, in the movies you watch, people disagree on
#
what something means all the time.
#
But you have canons of interpretation and you're absolutely right that these exceptions
#
have given the state much more presumptive power than any of us would like.
#
I don't think that that was the constitutional vision.
#
I think that what's happened is that you've actually had exceptions and you've interpreted
#
them in a way to swallow up the right.
#
And so I'm not at all on board with that.
#
But I think that it's a mistake to conflate general rules and rules by definition have
#
to be general with how they are applied, right?
#
And I think that we should also be very reluctant to actually criticize the constitution for
#
current moments in Indian politics, as well as to praise it.
#
Ultimately, constitutional success or failure rests on a certain kind of political consensus
#
external to the constitution.
#
If you have a political and judicial consensus that doesn't want to recognize free speech,
#
no provision is going to be able to save you.
#
And so the thing is that the constitution is providing what?
#
It's like almost you have a fridge that is providing you some mechanism on how to cool
#
If you don't want to plug the fridge in, it's not the fridge's fault, right?
#
And so at the founding, you actually have a document that they put in place to create
#
a certain kind of citizen, and you have a political consensus on interpreting that document
#
in a certain way and taking that document seriously, right?
#
If either of those go, you're not going to get that citizen, right?
#
I mean, part of what you see in India today is a certain manipulation of the constitution,
#
but also a certain attempt in some quarters to disregard it altogether.
#
Extra constitutional violence, right?
#
Extra constitutional actions.
#
And so that's not even to take it seriously.
#
Now in that the constitution can only do so much, right?
#
It can't, you're going to have to have that kind of the political elite and the judicial
#
elite have to buy into the document.
#
So I recorded with Kapil Komi Reddy last week, and we were talking about his book, Malevolent
#
Republic, and we spoke about your book a bit, and it was exactly on sort of this point where
#
he argued that the conception is not flawed, but the execution is.
#
And my argument was that the execution is flawed because the conception is.
#
It is because of these vaguely worded restrictions that the application of the law can be so
#
open and so can go on all these different directions.
#
And for what is what, this is not a criticism I'm making with regard to current events.
#
I have written columns 15 years ago where arguing about these exact same laws and the
#
Congresses misuse them as much.
#
And if you look at the U.S. First Amendment, they don't have these caveats and therefore
#
they don't have such blatant misuses of, you know, free speech laws.
#
But they have plenty of caveats that have been introduced by the judiciary.
#
They don't have free speech laws because the judiciary has not allowed them, ours has.
#
Why is tradition not been struck down?
#
Why is criminal defamation been upheld?
#
Because the judiciary has a very different interpretation of free speech.
#
I mean, all of those laws have no place either under the Constitution.
#
If you say that the exception means more than the right, what can I say to you?
#
I mean, your chapter on codification after giving, you know, this absolutely fascinating
#
laying out this fascinating debate about should we have a thick Constitution or a thin one?
#
And you even quoted Nehru, you know, talking in detail about why we don't need a thick
#
Constitution and blah, blah, blah.
#
And then Ambedkar very eloquently pointing out, and I'll quote him on this quote, constitutional
#
morality is not a natural sentiment.
#
It has to be cultivated.
#
We must realize that our people have yet to learn it.
#
Morality in India is only a top dressing on an Indian soil, which is essentially undemocratic.
#
And we can make of that what we will.
#
So you have sort of three sort of illustrations of this codification in this chapter.
#
And the second one is what we just kind of spoke about where rights and their caveats,
#
which were hotly debated because many felt like Somnath Lahiri and other legislators
#
that there should be no caveats.
#
Otherwise, what is the point?
#
And I must say, I tend to agree with that, but I understand the reasoning behind it.
#
It's extremely cogent and it's just a statist instinct somehow rationalizing itself.
#
Another example you gave is of the directive principles.
#
Tell me a bit about, you know, those specific debates that you've got those directive principles
#
They are not enforceable.
#
So it is almost like keep by lecture there, they are virtue signaling.
#
But if they're not enforceable, why are they there at all?
#
So this was one view, right?
#
And so there have been two puzzles about the directive principles.
#
One puzzle has been exactly the one you said that look, if they are not enforceable, what
#
And the second puzzle is the puzzle that look earlier, they used to be enforceable in previous
#
Why was there a switch?
#
I think that there's an answer to both things.
#
Let's begin the second question first, which is I don't think there was a switch.
#
That's the first thing I want to say.
#
And I think that this is one issue on which Nija Jayaal and I have a disagreement.
#
And so one of the things that she mentions in her extraordinary book is how Ambedkar
#
actually shifted his view from a memorandum to a subsequent speech.
#
I spent some time discussing Ambedkar and I don't think he switched his view.
#
So I actually think that the view was consistent all along.
#
The view was that any legitimate state needs to be committed to both civil liberties and
#
it needs to be committed to social and economic welfare.
#
That never changed previously and it didn't change later.
#
Now the question is why are they there if they cannot be enforced?
#
And I think there are two, three things going on here.
#
I think the first is the sense that look, judicial enforcement is actually a question
#
of specific institutional design.
#
Whether or not something is judicially enforced is not necessarily signifying its importance.
#
It is actually signifying something else, that this is something that is fit for determination
#
by the judiciary and it is a matter of law enforcement.
#
Because the legislature makes laws, executive applies laws, judiciary enforces laws.
#
Now part of what's happening in that moment is that countries are only recognizing civil
#
political rights and some are not even, like the Soviet Union.
#
What the directive principles do is the combination of civil political rights and socio-economic
#
goals, the fundamental rights and the directive principles means that the constitution is
#
providing both the means by which change can occur, which is through civil liberties and
#
it's also providing the ends, which is a certain amount of economic and social welfare.
#
And the reason they exist is that they say, look in India, because there's no knowledge
#
and understanding, those ends might not be clear.
#
You might actually not know that that's the job of government.
#
And then Ambedkar asks, what will the security be?
#
And he answers by saying, look, the security will be that people will vote each other out.
#
Because that's what it means to be a democracy, but at least I need to tell people this is
#
what they should be voting on.
#
So even if there's no judicial enforcement, there is electoral enforcement.
#
And that's, and the point is also to give you a sense of why the civil political liberties
#
thing is important as means is, you know, for years people have gone on and on about
#
how socio-economic rights should be enforced.
#
And now the Indian Supreme court has often done it.
#
Look at where that's gotten you.
#
A tangible example that captures things is the Aadhaar judgment.
#
In the Aadhaar judgment, the court is remarkably unconcerned with civil political rights on
#
the promise of social and economic welfare, on the development needs of India.
#
This is Soviet Union 2.0 in terms of logic, right?
#
And so actually the enforcement of that has got you in a place where the means no longer
#
And so the bifurcation was rested on something very significant.
#
It rested on the point that look, these are certain things that are fit for this kind
#
These are certain things that are fit for another kind of person.
#
It doesn't mean that one is more important than the other.
#
A country may need podcasts and it may need television channels.
#
Doesn't mean that if I don't put Amit on TV, I don't think podcasts are important, right?
#
Or I don't think TV is important.
#
People might be suited to very specific things.
#
Institutions are suited to specific things and each have their own logic for enforcement
#
So if I may sort of frame it this way, you have negative rights and positive rights,
#
Negative rights come from the whole Lockean notion of what people may not do to you.
#
They may not shut you up.
#
So the right to life, the right to free speech, all of those are negative rights and all of
#
those are embodied in the fundamental rights, which are judicially enforceable.
#
So through that, the state is essentially committing to protecting each individual citizen
#
and positive rights are, I won't even call them rights, I'd call them entitlements, but
#
whatever language you use, positive rights are things like the right to education, the
#
right to food, and you can only essentially fulfill those rights with a certain amount
#
of state coercion because you need resources to get those.
#
You are infringing negative rights somewhere or the other to enforce those and the decision
#
that the framers therefore took was that let's put all the negative rights in the fundamental
#
rights so people are assured that the state will protect them.
#
But there's no point putting the positive rights there because society hasn't evolved
#
enough and let's put them in the directive principle so they are clearly stated and enunciated,
#
but we can't make them enforceable.
#
And if they are enforceable, it should never be at the cost of the fundamental rights.
#
Is that a correct summation?
#
In a way, I mean, I wouldn't exactly frame it like this because I think that there's
#
been a lot of excellent literature in the last two decades about how this negative-positive
#
distinction doesn't fully work, right?
#
Because at the end of the day, even to support negative rights, the state needs to do a lot
#
I think the way to think about it would be civil-political versus socio-economic and
#
I think understanding that in the case of civil-political, we actually refer to individualized
#
We refer to applications relating to a particular specific act, a particular instance, a particular
#
person, a particular group of people.
#
In the case of socio- and economic welfare, we are often framing policy questions of a
#
But it's more the distinction between civil-political and socio-economic than negative-positive
#
because the negative-positive just becomes tricky, right?
#
Because even if I have to protect, say, the right to free speech or from arbitrary arrest,
#
I still need to have a judicial system to guarantee that.
#
I need to have a law enforce...
#
I mean, I still had to do a lot of positive work.
#
Nothing is guaranteed by itself.
#
I mean, that's understood.
#
That is the liberal paradox that for your rights to be protected, you're giving away
#
a certain portion of your rights, but no more.
#
But that's why I just...
#
I think the negative-positive is not fully revealed.
#
So civil-political versus socio-economic.
#
Let's kind of move on to the third element of your codification chapter, which is the
#
debate between procedural and substantive due process.
#
So, you know, it's simple, I hope, which is that procedural due process is basically a
#
situation where your right to life or personal liberty can be taken away so long as you follow
#
the procedure in the law.
#
It's as simple as that, right?
#
So if the procedure says that, look, person has to be arrested, has to be given a lawyer,
#
As long as you've done all that, it's fine.
#
Now obviously, if that is what you're guaranteeing, then that is a check on the executive, right?
#
Because the executive has to follow the law, but parliament has a lot of freedom in framing
#
A second is substantive due process, where you're saying, look, not only do you actually
#
have to, not only does the executive has to follow the law created by parliament, the
#
law created by parliament itself has to have certain amounts of fairness, rule of law type
#
So that itself actually has to have certain inbuilt requirements.
#
Now again, in this situation, the debate about how to codify this provision, how to actually
#
give it textual character was not a debate over whether you want the state to have more
#
Like in the case of rights, like in the case of directive principles, one of the themes
#
I've tried to run throughout, successfully, unsuccessfully, is that these were all debates
#
actually about how you should write something.
#
These were not varying visions, right?
#
They all, nobody thought, nobody who argued for restrictions on free speech in the constitution
#
had a less generous view of free speech.
#
That's the interesting thing, right?
#
So then you could ask, what were they thinking?
#
Maybe they were wrong to think that, but at the end of the day, they all are thinking
#
that that is itself what makes free speech possible.
#
They are thinking that, look, actually you put in no restrictions tomorrow, other bodies
#
who we don't trust could impose 10 more restrictions.
#
Now the puzzle here is that if you recognize substantive due process, which means that
#
you give the legislature very little power or less power, then because you're also going
#
to judge the laws that they create, then you could prevent very radical economic legislation
#
like property redistribution because there could be debates about on what test will you
#
On the other hand, if you actually only allow procedural due process, you will give the
#
legislature very large powers and the danger with that is that you will allow preventive
#
Now the interesting thing about this debate, Amit, is neither side wants extreme preventive
#
detention, neither side wants to limit economic redistribution.
#
But the question is which textual provision will give you what?
#
So it again captures the neutrality of the kind of the harmony between both sides.
#
And ultimately what you get is you resolve the issue by doing procedural due process,
#
but by actually having a separate set of provisions in the constitution, Article 22, that provide
#
certain safeguards in cases of preventive detention.
#
Like you need to have a lawyer, you need to be told all things like that, double jeopardy,
#
So in a sense, these guys are not just debating what the constitution should do.
#
It's not so much a debate over ends per se, but they're also debating how the constitution
#
should achieve that, how it should be written.
#
So it's at this meta level where they're having to think about this.
#
I mean, these are a group of people who are basically saying, look, after us in a year,
#
the whole country will be governed through popular authorization.
#
What will that do to people?
#
And what document do they need to actually understand how to behave?
#
I'm not, I can't limit them.
#
They could change the constitution or they could burn it, but assume that they want to
#
What guidance can I provide to them?
#
If they say, yeah, people have told us protect free speech.
#
I don't even know what free speech is.
#
If people will say protect due process, I don't even know what these things mean.
#
So the constitution in that sense, this is a phrase I use later in the book, is in most
#
countries in the West, it's a rule book.
#
In India, it's also a textbook, right?
#
The whole idea is that you're actually explaining these concepts because they are not understood
#
No, and it's interesting that it's often being joked, like what you point out is that because
#
we are a democracy, the facility to change the constitution is, you know, freely available
#
to elected politicians and this has been freely used, like at one point it was joked that
#
the constitution is not a book, but a periodical and Nehru changed it very often, Indira, of
#
And you know, you spoke of burning Ambedkar said, I think in 53 or 54, that if I had my
#
way, I would just have burned the constitution as an aside before we go to a commercial break.
#
What made him so frustrated?
#
I mean, I think those are very specific debates about sort of Hindu reform, about the nature
#
in which change is occurring in an independent India.
#
So that, I mean, one of the things I consciously try to do is make sure that I don't spend
#
too much time post 1950, A, because then those dynamics become very different and B also,
#
then I suffer the problem of having to update my book, which I don't want to do because
#
And we'll take a quick commercial break and after we come back, the meat of the book is
#
We shall talk about that.
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Welcome back to the scene in the unseen.
#
I'm chatting with Madhav Khosla on his amazing book, India's Founding Moment, which is essentially
#
divided into three themes where he looks at these three sort of locations of debate at
#
the time the constitution was being formed.
#
One as we have discussed is the codification, both in the sense of the extreme amount of
#
codification that the book had and also illustrating that through how they looked at directive
#
principles, how they looked at the rights which they did guarantee, but attached caveats
#
to and in the whole question of procedural versus substantive due process.
#
Now we come to sort of your second chapter of your book, which is about how we chose
#
such a centralized model.
#
Now I'd done an episode with the historian Gyan Prakash on his book on the emergency
#
and he pointed out during that episode and indeed in his book that one of the reasons
#
that so much power was centralized, which is why everything Indira Gandhi did was absolutely
#
alleged by the constitution, one of the reasons so much power was centralized was that the
#
framers of our constitution, at the time they were framing the constitution, there was violence
#
breaking out all over the country, there was no guarantee that the center would hold.
#
So hey, they centralized power for that reason.
#
But as you point out in your book, debates around that had been going on for decades,
#
you know, and Gandhi was of course one of the prominent voices against centralization.
#
So were people like Radhakamal Mukherjee, who wrote the book, democracies of the East,
#
which I found fascinating and I hadn't heard of it before.
#
And you've quoted elaborately from that.
#
So give me a sense of, through the decades before independence is even a remote possibility,
#
how are people thinking of this relationship between state and society?
#
So Amit, you know, I began thinking about this chapter with the preconception that I
#
think a lot of people have, one that you just gestured at, which was that look, partition
#
happened, there's civil war and a strong centralized state is what can prevent India from breaking
#
up into smaller states.
#
It can prevent further partition, it can prevent the balkanization of the new country.
#
And so I thought that look, a centralized state is basically a contingent outcome of
#
a serious security concern and of fear.
#
And then the more you read the debates, you realize that's not actually true.
#
So you realize that there's a deep ideological and theoretical vision behind centralization.
#
And we need to think a little bit about what that vision was, right?
#
Now the constitutional assembly meets under the 1946 cabinet mission plan, right?
#
And the cabinet mission plan is a failure.
#
Under the cabinet mission plan, there is not that much centralization, right?
#
It's a federation of a complex kind.
#
And once the cabinet mission plan fails, when India becomes divided, because under the cabinet
#
mission plan, it was one united country, basically, people in the constitutional assembly are
#
thrilled because they are like, look, now we have freedom.
#
We can make any country we want.
#
We are not governed by the provisions of the plan.
#
And then you see a debate about centralization and there are two broad traditions.
#
And I think the best way to understand the centralization debate is to see it as a contrast
#
between the state and society.
#
So on the one hand, you have people like Gandhi, like Radha Kamal Mukherjee, who want something
#
called political pluralism.
#
And let's pause for a moment because it's quite a complicated idea.
#
In our societies, the state is at the center of authority.
#
The state is the exclusive authority.
#
A society that has political pluralism is one where a range of bodies in society exercise
#
authority, professional guilds, associations, organizations, and the state is one among
#
There's nothing special about the state.
#
And what was interesting in Mukherjee and Gandhi's vision is that you would have these
#
extremely decentralized village republics where there would be authority split everywhere.
#
And so its authority is more and more dispersed.
#
Think about it as a dispersal of power through and through.
#
And that, in a way, would provide some kind of freedom.
#
So it is a vision of democracy.
#
Make no mistake about it.
#
It's a vision of democracy that places a huge amount of emphasis on participation and on
#
local attention and on local engagement.
#
And it is a vision of democracy where there is a critique of the modernized, civilized,
#
Western conception of progress because that is associated with a certain kind of violence.
#
Now on the alternative side of the spectrum, you also have a vision of democracy.
#
There, the vision of democracy comes from the idea that look, everybody in India sees
#
each other differently.
#
They see each other through narrow, local eyes.
#
And localism is the enemy of equality.
#
Because ultimately, if I see you as belonging to X village, Y caste, C religion, speaking
#
A language, B dialect, I'm not seeing you as a human being.
#
I'm not seeing you as an individual.
#
And the way to actually make me see you as an individual is to dismantle those prior
#
forms of authority and to actually place us all under one umbrella.
#
And that one umbrella is the state.
#
So the minute we all get under one umbrella, we actually come under the state.
#
So there are two very different visions of democracy and they rest on two very different
#
visions of the society and the state.
#
On the one hand, society can be the site of change and society can be the site of freedom
#
and the state is a violent force that just coerces people.
#
On the other hand, society is what needs to be destroyed quite literally.
#
And actually the state is the force that can enable us to see each other differently.
#
Now the question that you can ask is look, why is it that the pluralists lost out?
#
And the pluralists lost out for the same reason that they lost out everywhere.
#
Which is, and by everywhere, I mean that this was part of a big global movement also in
#
the UK most famously, but also elsewhere.
#
And the pluralists lost out everywhere.
#
And by lost out, what do I mean?
#
I mean that look, one of the important, noteworthy startling features of the mid 20th century
#
is that for 50 years before that, you have a range of proposals to move beyond the nation
#
All kinds of federations, you have a range of proposals for certain kinds of pluralism.
#
But ultimately what happens is that the 20th century marks the centrality of the nation
#
state and its victory over other institutional forms.
#
And the pluralists lose out because they never have an argument for actually how you can
#
through the logic of society without a state preserve peace and enable a certain kind of
#
So when somebody will say that, look, how can you actually ensure that Hindus and Muslims
#
The pluralist answer will be, look, be good to your neighbors.
#
They've not fought before.
#
If they fought before, then they find a way to deal with it.
#
It has happened for so many years, it will happen for more years.
#
By happen, I mean the resolution, right?
#
That is not good enough as an answer to people who have such a deep fear of that situation
#
because they say, look, you actually need a force, a genuine force to attack and to
#
You cannot just say society will find a way because it has found a way all the time before.
#
So the difference is that the reason for the failure is that they cannot offer a conceptual
#
answer for the reasons for which the state had been imagined in the first place.
#
Their answer is a kind of sociology or it's a kind of history, right?
#
Where they say, look, it's happened before.
#
People have been fighting for long.
#
They find a way to deal with it.
#
Whereas if I'm terrified that two people are going to kill each other, I want an answer
#
to why they wouldn't do it.
#
And the answer why they wouldn't do it is because one of them would be jailed.
#
And so that answer is the state.
#
In fact, this reminds me of what my great liberal hero Frederick Hayek once wrote in
#
an essay called Why I am not a conservative, where he pointed out that, you know, conservatives
#
will always have things to say about the means of change, but they will not be able to explain
#
how change will happen in the first place.
#
They will have no specific ends of their own, which is something I explored in an episode
#
also with Jethi Trau on his recent book, The Indian Conservative, which reminded me of
#
this argument against the pluralists that, you know, how will you make change happen?
#
My sort of question here is I totally get the logic against localism, that when you
#
have divisive, dangerous, unpredictable localism, the urge for centralization and to bring it
#
under one set of values is very coherent to me.
#
But what I would argue for, and what, you know, in India has sometimes been paid lip
#
service to, is that you centralize your values through the rules of the constitution or the
#
textbook of the constitution.
#
You centralize your values, but you decentralize governance, where governance becomes as local
#
as possible all the way down to cities and towns in Panchayat-e-Raj.
#
And what that does is that it creates a link between power and accountability, which doesn't
#
exist today because our system is so dysfunctional.
#
It increases the value of a vote because you will actually feel assured that your vote
#
is far likelier to make a difference at that level and therefore citizens become more concerned
#
and educate themselves better, their incentives get better.
#
And that's the sort of, so when I talk about the desirability of a decentralized state,
#
And you have your values centralized in the constitution and the laws that govern you,
#
but you have your governance decentralized so democracy can be more efficient.
#
No, I certainly think that India has, I mean, one of the many ills in India, in India's
#
constitution model today is the kind of centralization, right?
#
I think the important thing to think about is at that moment, the fear of decentralization,
#
even of the kinds that you describe, right?
#
Or of like, you could, I mean, there are ways to think that centralize on some things, decentralize
#
on others, so on and so forth.
#
And this is just what's interesting to learn, right?
#
Is that the fear of society so deep that there's a sense that, look, the more you go down,
#
the more society will permeate the state, right?
#
And actually therefore radicalism requires some distance, which is why people who are
#
critical of this are saying, look, you're doing imperialism 2.0 because the whole point
#
that radicalism requires distance was the colonial argument.
#
So it's a very interesting contest between both sides.
#
And I think it's also worth noting because you reference the word conservative a moment
#
ago, depending on where you stand, people like Gandhi and Mukherjee are either conservative
#
Yes, because at one level they are radical because they are saying, look, Indian society
#
You don't even need the state.
#
Gandhi had a profoundly radical view of human agency.
#
Not only did he believe that people were capable of what we might think are extraordinary things,
#
he thought every person is capable of that.
#
So I think what's important in the contest between people like Ambedkar Nehru versus
#
a Gandhi-Mukherjee type thing is both sides claim radicalism and both sides claim democracy.
#
I think what Gandhi and Mukherjee do and tell me if you agree is that their ends are radical,
#
but their means are conservative.
#
No, they would say that their means are deeply radical because they say that it can happen
#
through society itself.
#
But that's a conservative statement that you don't need the coercive power of the state
#
that society will reform itself where required.
#
That's exactly the classic conservative position, isn't it?
#
That's what Burke would say.
#
No, because they would say that, look, it's so much more radical that the change lies
#
That I can actually change within, that's radical.
#
It's conservative to think that some external force will do it.
#
Their whole metaphor of the state is an external force.
#
They see the state simply like colonialism, just as an external force.
#
If somebody were to tell you, Amit, there are A, B, C things you can change and either
#
change them by talking to these people or change them within just on your own.
#
You would say that changing them on my own is like too radical.
#
That requires too much almost.
#
There's a different level of evolution needed for that kind of, and that's their answer.
#
I think I'd interpret these terms slightly differently, but moving on.
#
Yeah, I mean, I would just say that both sides claim radicalism and both sides claim democracy.
#
I think that's what I would say.
#
I'm not saying you have to agree or disagree, right?
#
The very fact that there are multiple definitions of these terms is why they can both claim
#
You also cite, you know, it's very interesting that, you know, Lasky was a big influence
#
on Nehru and a hero of Nehru, and yet Lasky has a different view on this subject than
#
In your book, you write, I'll quote from that, quote, for Lasky, the emphasis on state coercion
#
had been a philosophical and sociological error.
#
It had presented a model of power that failed to pay due attention to the reality of consent.
#
And later on, you quote P. T. Chacko saying during the debates, quote, in the place of
#
foreign imperialism, we are now having an Indian imperialism, stop quote.
#
And many would say looking at, for example, what is happening in Kashmir now, you know,
#
many would turn to Lasky's point about the consent of the government and the way the
#
central government could just declare Kashmir a non-state and split it up into union territories.
#
Doesn't that show that there was something profound in the warnings of those who warned
#
against such a powerful centralized state?
#
So two things, one, just as a specific point of intellectual history, you're right that
#
I cite Lasky as a pluralist, Lasky changes his view later, right?
#
And so he then becomes a state guy and that's the best sort of book that explains the Lasky
#
and switch and is the best among the best books on pluralism is a book by David Runciman,
#
The second is that I think the short answer that a lot of people would give you is yes,
#
I mean, I think the state seems to be exercising extraordinary coercive power significantly
#
more than what any of us associated with modern constitutional democracies.
#
Now how that has happened and how that will change is a question probably above one's
#
But I think that it's certainly true that more and more the state is behaving less and
#
less like the state in a free society.
#
And I just want to clarify for my listeners that my sort of what you have described beautifully
#
here is the arguments that led to the centralization of the state.
#
Nowhere have you actually defended it or argued for it.
#
In fact, you've been pretty scrupulous in giving both sides of the debate and talking
#
about, you know, how we sort of got here.
#
Let's talk about the third locus of your book, which is very complicated and which also is
#
like a two part question.
#
And that's the question of identity.
#
India at its founding does have the huge Hindu Muslim problem to deal with.
#
And you've quoted from, you know, Jinnah's presidential address at the All India Muslim
#
League Conference in 1940, where he explains in great detail why Hindus and Muslims are
#
two separate nations and they cannot possibly live together.
#
You've quoted Nehru expressing his contempt for group based thinking.
#
And at the same time, you've also cited from Ambedkar's book, Pakistan of the Partition
#
of India, where he points out that the argument behind Pakistan has some merit to it and,
#
you know, should not be caricatured.
#
And also at one point, he talks about which, which I found very interesting in the present
#
context where he talks about why Hindu nationalists and the Indian National Congress have both
#
failed in dealing with the problem, because as he says it, the Hindu nationalists want
#
to just do away with Muslims and the Indian National Congress wants to appease them and
#
pander to them and that doesn't help either.
#
Can you elaborate a bit on the sort of pre-independence debates that were happening around this question?
#
So, the interesting thing about the years prior to the birth of modern India is that
#
there is a deep crisis of liberal representation, by which I mean that you are not seeing people
#
You are seeing them as members of groups and you are seeing citizenship as mediated through
#
So, if you see Muslim nationalists, Jinnah is the most famous example, but I also think
#
that somebody like Moulana Azad is very interesting.
#
And I think the problem that's happened is this, Amit, that all of our historical attention
#
is on partition, which is a question of territoriality.
#
Did you want one country or two?
#
If you change the focus and say, I'm not interested in the question of, do you want one country
#
But I am interested in the question actually of, do you see people as equal or as different?
#
The question of whether you keep them as equal or different and you could keep them as different
#
in one country or in two, but do you see them as equal or different, right?
#
If you ask that question, you're no longer interested in territoriality, but you're interested
#
And then your interesting date is not 1947, it's 1909, it's the Maldi Minto reforms onwards.
#
From that period to 1947, you barely find anyone who's seeing people as the same.
#
And just to clarify what the Mali Minto reforms did was it created separate electorates for
#
So basically, since that period, somebody like Jinnah is seeing them as different and
#
asking for two countries.
#
Somebody like Mulana Azad is seeing them as actually asking for one country.
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But I think it's not clear that he's seeing them as the same.
#
He never really gives up on Sharia.
#
And I discussed the intellectual origins of how far back this goes.
#
In the case of, I mean, it goes all the way back to Syed Ahmed Khan famously.
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In the case of Hindu nationalism, they see everybody as the same, but everybody's Hindu.
#
So they effectively, it means an elimination of the minority completely.
#
And the group which is the Indian National Congress, which unambiguously wants one country
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and unambiguously hates communalism, in some sense doesn't give us a very clear model either,
#
because it's not that interested in this question.
#
For most of his life, somebody like Nehru at that time, not for most of his life, but
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for most of those years, is interested in actually economic issues.
#
And he sees differences as exemplifying economic conflicts and as being a reflection of economic
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In fact, in your book, you write about how the Bengal conflict, he saw it not as a conflict
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between Hindus and Muslims, but landlords and tenants.
#
And you see those examples can be easily multiplied.
#
Similarly, sorry, in a different way, Gandhi is also somebody who doesn't take the question
#
seriously at the level of theory, because he's interested in practice.
#
Gandhi's answer is, look, you treat your neighbor well, right?
#
He doesn't have a model of representation, because he's aiming for a very different political
#
Now, that basically means that it's only after partition that you get a situation where you
#
have to come up with a theory of representation.
#
And you see two things happening in that moment in Indian history.
#
The first is that you see a move towards individual representation.
#
So the assembly rejects separate electorates, it rejects weightage on religious grounds,
#
it rejects reservations on religious grounds.
#
Because they say that, look, any model that is structured around identity cannot work.
#
It cannot create a sustainable political environment.
#
And how do we know that?
#
Because we've tried it.
#
We have actually been trying since the last 40 years, a model.
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And if you are involved in this kind of trap, then what Pratap Bhanumeda once called Savarkar's
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trap, you can never get a solution out of it.
#
If this is your question, all answers are wrong.
#
Because if you're a majority, then you can never, if you take the majority view, the
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minority will be unhappy.
#
If you take the minority view, the majority will be unhappy.
#
And so you actually cannot ask the question in that way.
#
The second thing they say is that, look, even to ask the question in that way is not only
#
politically unsustainable in the way that we've seen, but it also actually is not a
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reflection of a democracy.
#
Because the minute I am looking at people through certain identities, I am doing that
#
because I am thinking that, look, a Muslim has a certain interest, a Hindu has a certain
#
But I only needed to do that.
#
I only needed to guess people's interests in a British model where people were not expressing
#
Now that people can go to the ballot box and vote, I don't need to identify them in any
#
In fact, the only category that matters is political majority and political minority.
#
And that is a category that is created and recreated through politics, which goes back
#
The whole point of a democracy is that I can make any world, to make any world, I need
#
a majority and I can make any majority.
#
Even if I'm one person who believes something, a democracy lets me convince everybody else
#
and then we become a majority and we vote.
#
So the only category that matters for the purposes of a democratic politics is a political
#
majority and a political minority.
#
And in order for it to be democratic, that must almost by definition be fluid.
#
That can always be created and recreated.
#
And so I can then always see people differently.
#
Now the question that you might ask is, look, if people are so entrenched in seeing people
#
as Hindus and Muslims, wouldn't they vote like that?
#
And then the political majority and minority would mirror that.
#
And here, the assembly comes up with getting a very interesting lesson from partition.
#
Ultimately, what partition told you is that you created a huge communal problem where
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That means you put people in a specific institutional structure, right, of separate electorates,
#
of weightage, of reservations, all of this stuff, and you got them to think like that.
#
You put them in a different structure, they won't think like that.
#
And this is like the point that Siddharth Patel, for example, made where he said that
#
separate electorates had sharpened communal differences because people would see themselves
#
as Hindus or Muslims and their participation would be along those lines.
#
And this goes back just to the initial theme that we talked about, which is the heart of
#
the book, that you put people in any institutional structure, you will get that.
#
And so their point is you put people in an institutional structure where when you say
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majority minority, they don't think Hindu, Muslim, they think political majority, political
#
And they're always thinking, how can I change those?
#
So then what the constitution does by removing separate electorates is that it liberates
#
you politically from having to think of yourself as a Hindu.
#
You might still think, feel that we're at the level of a community or society, but politically
#
you can vote as an individual.
#
Yeah, you can think any way you want.
#
Nobody can stop you from doing that.
#
But the point is that the relevant political category is one actually of a political majority
#
And so the separation of, you know, so you did not have separate electorates, you just
#
have one electorate and this is the reasoning behind it.
#
You also don't have reservations on religion and you don't have weightage.
#
For all those years, it's not only separate electorates, there are a range of proposals
#
that are being worked out in different ways and all of them are rejected.
#
And you would assume that the arguments for rejecting them, for example, that they will
#
increase the differences between people, they will force people to think in those particular
#
boxes and so on and so forth, are arguments that could also be used against caste.
#
Now explain to me why, you know, that was looked at differently.
#
Before that, Amit, if I could just pause you for a second.
#
It's not only that it will make people think more like that.
#
It's that that's not the relevant question for politics.
#
I could make people think all the time like that or not at all like that.
#
What's relevant in politics is not ethnic majority, it's political majority.
#
And the minute I make it ethnic majority, I'm not letting myself create any political
#
So it's anti-democratic.
#
Because you're basically saying that I can't create the identity I want in politics.
#
The relevant identity being political majority.
#
That identity is already given to me from outside.
#
So that's outside the domain of politics.
#
Then I cannot actually be self-ruling.
#
Because to be self-ruling, I should be able to collectively create that identity in politics.
#
Then identity would be destiny.
#
You can make your own destiny.
#
Which is what it means to belong to the modern world as opposed to the ancient or medieval
#
So let's do the modern world itself is changing.
#
But I mean modern in a normative sense, not in a descriptive sense.
#
Let's talk about caste.
#
You know, what are the debates around that?
#
And here it's treated very differently from religion.
#
And you've sort of described the whole series of intellectual arguments around caste as
#
And at some level, of course, it mirrors a discussion we had earlier where Gandhi is
#
saying that let it change at the level of society.
#
And Ambedkar is saying, are you crazy?
#
That's never going to happen.
#
We need the state to sort of step in.
#
And at the same time, the same sort of arguments which could be made against religious reservations
#
can be made against caste reservations, but they're not for a very good reason which you
#
So tell me a bit about that.
#
So, I mean, this is a great question, right?
#
Because the caste, everything I've told you so far about religion, somebody could say,
#
look, Madhav, this is well and good.
#
But then why give reservations on caste?
#
And I think nobody's quite answered this question.
#
One answer has been, look, it's an exception.
#
That doesn't really explain it.
#
It is, oh, it's just contradictory, right?
#
So I'm just sort of describing the conflict.
#
I think that they actually fit together.
#
And they fit together in the following way, that firstly, there is an appreciation of
#
the fact that caste tenders a different problem to religion, namely in religion, the challenge
#
is how can I preserve religious freedom and allow people to vote on non-religious grounds
#
and not mediate their citizenship through religion.
#
In the case of caste, the goal is not accommodation, it's annihilation.
#
I actually want to end caste.
#
That's the first thing to be said.
#
The second is that I actually think that, I as in the founders think, that you could
#
be in a kind of democratic system of the kind that I've described, but there could be certain
#
kinds of people excluded from the very process because the process is not perfect in some
#
way, and their views therefore don't reach the fore.
#
Now that is not a majority minority game necessarily, right?
#
That is a game about actually a certain amount of discrimination or a certain amount of backwardness.
#
And there is an attempt at the founding to say, okay, if I actually have a group like
#
this, how do I identify them?
#
Now I don't want to identify them as belonging just to a particular identity, and why don't
#
I don't want to do that for two reasons.
#
Number one, I need some kind of principle, right?
#
Today, somebody could suffer from that, tomorrow it could be somebody else.
#
Because if I'm doing it, I need to explain it to the people within the group and outside
#
Second, if I do it purely on identity, then actually the identity I want to remove will
#
get further entrenched, right?
#
The identity I want to remove will actually be the identity that gets recognized, which
#
is why the attempt then becomes to abstract a certain kind of concept.
#
And the concept that they arrive at is one of backwardness.
#
Now the reason why this is linked to individual freedom in just the way that the religion
#
question was, is that in the religion question, the attempt is actually to focus on the individual
#
rather than mediate the relationship between him or her through the group.
#
Here the attempt is to rescue the individual from the chains of a certain group pressure,
#
In both cases, I want to recover the individual.
#
And here the thought is that if I abstract away and create a category of backwardness,
#
then I could identify people.
#
Now it so happens at that time that whatever way you slice it, certain caste groups are
#
backward and they fit into that.
#
But the identification of the caste group is actually the consequence of the principle.
#
It's not the object of it, right?
#
You have a principle and then you arrive at that.
#
And the very fact that there's an emphasis on that leads to Ambedkar saying many important
#
For instance, one of the things he says is that, look, it would make no sense in the
#
world to have reservations more than 50% for the simple reason that then the group is
#
not backward, because backwardness is a relative category.
#
If everybody is backward, then how can you be backward?
#
This is like the opposite of the Lake Verbegon problem, which was if Lake Verbegon was this
#
fictional town created by Garrison Wheeler where everybody was above average.
#
And so one of the cases that the Supreme Court is hearing currently is a case involving 100%
#
But Ambedkar would be horrified at this, right?
#
Because the argument is that look, actually...
#
So the idea was that, look, I want to annihilate caste, I want to transcend caste, and there
#
are certain amounts of disadvantage that exist that I may need to tackle in some special
#
We have collapsed into a situation where the link between special treatment and disadvantage
#
has been thrown out of the window.
#
And instead, I want to actually split power between different caste groups.
#
So the constitution has now become a power sharing device between castes rather than
#
actually a way to liberate caste or liberate the individual from caste.
#
No, and it seems to me that, you know, people often conflate the question of caste and what
#
reservations have become today.
#
So if you criticize reservations as they are today, you are immediately assumed to be caste
#
ist, which need not be the case.
#
And I would say that the concept of caste has also become politicized to the extent
#
that I can see the rationale of some of the arguments against religious recognition in
#
the constitution, separate electorates and reservations for religion and so on, that
#
those fears coming through in the context of caste, where you are deepening divisions
#
between people of different castes because of the politicization of it.
#
And therefore, you are not annihilating it if you embed it in the constitution.
#
Completely, completely.
#
I mean, it's, you've now reached a situation where you're trying to basically have citizens
#
compete with one another rather than hold the state accountable.
#
That's absolutely correct.
#
And I mean, you're also right that the debate takes on a certain form where if you criticize
#
anything about it, even if you criticize 100% reservations, you're somehow against equality
#
or against the liberation of certain groups that have been horrifically discriminated
#
against, whereas Ambedkar would have been tormented at the current caste arrangement.
#
So let's kind of move on to a couple of larger questions that I had.
#
And one is that you've set off in this book very clearly to be a scrupulous chronicler.
#
You know, you've chronicled it.
#
And perhaps the only quibble I might have against it, which is a really small quibble
#
and which is possibly a feature and not a bug, is that there's not enough of your perspective
#
So is this a conscious decision that I will not get, you know, my view of the world in
#
Is there a story that needs to be told?
#
And if I leave myself out of it, is better that way?
#
No, I actually think there is a lot of my perspective.
#
I think that all narratives have arguments embedded in them.
#
And I think a lot of my perspective, I gesture at the very end, right?
#
I don't think that the purpose of the book is so much necessarily to defend a particular
#
But I think it is to defend the idea that, look, this is actually what democratic citizenship
#
Centered around general rules and the rule of law, centered around a state that treats
#
people equally, and centered around citizenship unmediated by identity.
#
So I think that no author can escape his or her perspective as much as they might want
#
to distance themselves from it.
#
I think I'm all over the book.
#
But I think it's also very bad for authors to explain their own work.
#
I think the postmodern thought that the author is dead is a good one.
#
No, I mean, I meant it in the, I mean, obviously then you have been very crafty about it.
#
And I meant it in the sense that while reading your chapters on centralization, or for example,
#
rights and their caveats, and you summarize the arguments on both sides so obviously faithfully
#
and with such clarity that I wasn't sure where you stood on these matters.
#
But that just means I've done well.
#
That does mean you've done well.
#
Because I've convinced you that it's them, not me.
#
Well, they made road the constitution, not you.
#
So I think that there's certain, no, I think that there is an attempt at some kind of faithful
#
But I think, I think it's like, I'll give you an example, right?
#
I think in the centralization question, I think I tried to faithfully reconstruct both
#
But I also tried to emphasize why one side lost, right?
#
Similarly in the codification, I tried to capture the impulse, right?
#
So I think in explaining, I think my perspective comes out in the kind of sympathy I offer to
#
actually why certain things won at the end.
#
Now, you know, people often would think of legal studies and legal history and the history
#
of the constitution as a very dry subject.
#
And what you're obviously dealing with is some incredible human beings.
#
So, you know, while you were writing this, while you were reading everything they wrote,
#
while you were reading about their lives, while you were reading their debates, you
#
know, do you go into rabbit holes when you think about what fascinating human beings
#
And what also struck me from just, you know, following your footnotes and is that so many
#
of the people who were speaking in these debates, whether in the constituent assembly debates
#
or the larger debate of ideas that went on, were such incredible thinkers and speakers.
#
And I contrast that with today and I'm like, what the fuck?
#
No, I mean, they are incredible.
#
And I think that they are remarkable human beings and I think they have remarkable lives.
#
And you also get a sense of when their reasons for something are actually a rationalization
#
for an impulse otherwise held?
#
I mean, one of the joys and one of the tragedies in some sense of working on a project like
#
this is that you're exposed to extraordinary people.
#
And of course, it's a joy because it's a treat.
#
It's a tragedy because you realize how distant they are from the historical imagination of
#
But they also just have very interesting lives.
#
I'm not sure our lives will ever be so interesting.
#
We've lived in different times and as I have said a couple of times on the show, they were
#
responding to different incentives.
#
So that's why you got those kinds of politicians and not the ones you have today who are mainly
#
motivated by the lust for power.
#
So just tell me, so just looking at current times, what is the relevance of the constitution?
#
And I asked this in two parts.
#
Part one is that it's been called a periodical and not a book.
#
It's so easy to change.
#
This government might well have the numbers to do it at some point in time.
#
What is there for the relevance?
#
And part two is that even if it wasn't so easy to change, like you pointed out when
#
we were discussing free speech and the caveats, that the execution can often stray very far
#
away from what the constitution intended.
#
So if you know, what is the theory in the constitution is not reflected in practice
#
in the political economy and in our society, then what's the point?
#
How relevant is it really?
#
I mean, I think, look, it is not relevant in the sense that if political elites don't
#
take it seriously, like I said, it's not relevant, right?
#
And it's like one of the things I often tell people is, look, the constitution won't save
#
Indian democracy may save the constitution.
#
I think it's relevant because above all, it's a charter for what equality and freedom mean,
#
And I think it's relevant because it is a certain commitment to a certain kind of framework.
#
And if people take that framework seriously, then it has the chance for a sustainable political
#
environment and it has a chance for a certain vision of freedom.
#
So you know, my final question then for someone who has spent a certain amount of time living
#
in the past, by which I mean these decades when these debates took place and by inhabiting
#
that space and by someone who is at the same time alive right now and seeing our modern
#
ferments and torments, looking forward, say over a 20 year period, what gives you hope
#
and what gives you despair?
#
I think the thing that gives me hope is that political life is extraordinarily contingent.
#
And that just means that even your worst fears may be undone by some new contingency.
#
I think what gives me fear is the fact that it is only some kind of contingency that might
#
Madhav, thanks so much for coming on the show.
#
I enjoyed reading your book and I enjoyed chatting with you.
#
I hope it's a first for many.
#
If you enjoyed listening to this episode, hop on over to your nearest bookstore online
#
or offline and by India's founding moment by Madhav Khosla.
#
You can follow Madhav on Twitter at Mad Khosla.
#
That's one word, Mad Khosla.
#
You can follow me on Twitter at Amit Verma, A-M-I-T-V-A-R-M-A.
#
You can browse past episodes of The Scene and the Unseen at sceneunseen.in and thinkpragati.com.
#
The Scene and the Unseen is supported by the Takshashila Institution.
#
You can find out all about the incredible public policy courses at takshashila.org.in.
#
Thank you for listening.
