Madhav Khosla, a doctoral student of political theory at Harvard University, is the author of “The Indian Constitution,†a short introduction to the world's longest political text, which consists of 395 articles and 12 schedules. The book is a fascinating tour through the life of India's supreme law, analyzing its central features like federalism, fundamental rights and the separation of power. In an interview with India Ink, Mr. Khosla explained why he sees the Constitution as more than a political text and how his book isn't just for lawyers.
Do you think Indians should be (or can be) “introduced†to the Constitution?
I think it depends a lot on what you mean by introduction. I don't intend to make a flippant, semantic response, but I think what all of us ought to do is to, at some level, engage with some of the central debates in it. One of the interesting things is that in the U.S., it's amazing how muc h general knowledge about the Constitution is prevalent. Somebody will have some view of the First Amendment or free speech, and I think in India the basic knowledge is far less. So the aim was to make it more central to public discourse, and I think that's certainly possible.
One striking aspect of the book is its sophisticated yet accessible prose. Was that easy to do? What was the writing process like?
I was always trying to prevent two scenarios: one is that it'll just collapse into a pamphlet, a book for dummies. The second is that it will be inaccessible to people who aren't lawyers. So the aim was, at each stage, to see whether or not the point that I'm trying to make addresses a certain moment or scenario in Indian politics for people to grasp. Also, if somebody doesn't know anything about Indian politics or about Indian law, he probably won't get the book at all, and I think that's also fine. So the aim was to park it in the middle of these two.
As a doctoral student, I assume you're used to writing a lot of academic prose. Did that style ever creep into the writing process of this book?
I'm sure it did, and I kept going back at it to see if there are any other matters that are technical and showed drafts to friends. A huge challenge was also to synthesize all of this into a proper story because the book is shorter than the Constitution. You're talking about cases that have developed over 60 years, which is a huge amount. The standard treatise of a constitution is about three or four volumes; the largest one is 10 volumes. Each of these is like a 1,000 pages. So that's another challenge â€" to pick and choose what stories might be more relevant than others.
Your book is peppered with examples of such prominent cases as the Armed Forces Special Powers Act and the J.M.M. [Jharkhand Mukti Morcha] bribery case of 1993. Did you cite these to make the book relatable to your audience or was their presence naturally born out of the aspects you were discussing in the book?
I think the most important factor in determining what examples to choose and what cases to emphasize is actually bench strength. The Indian Supreme Court sits across different courtrooms and the importance of a decision depends on the strength of the bench. So the most important thing was to respect the varying degrees of bench strength. So if I'm taking a case on parliamentary privileges - the 1993 case - my pool is typically limited to cases of five benches [where five judges of the Supreme Court decide the matter] or more, which are constitutional benches. Within it, I see whether one of them is raising particularly interesting issues, and then it's a judgment call to take a newer case or an older case.
I used the Armed Forces Special Powers Act in a very specific context of how legislative power is interpreted, and it struck me as a case that might resonate with people, w hich is why I used it even though it wasn't a five-bench case.
You also write about how the asymmetrical nature of our Constitution poses the risk of an identity crisis. Is there a way to avoid such a scenario?
What is crucial to any asymmetry is that it must have an internal logic of its own, and I think that was present in the Constitution's founding moments. So if we decided that Dalits were to asymmetrically treated, there was a certain logic to that. It was ground in coherent argument about discrimination and unequal starting positions.
My real fear is that normative arbitrariness is creeping into constitutional amendments, and there's no logic to the asymmetry anymore. I think the most glaring and recent example of that is the current debate of promotions and quotas. The argument was that people have unequal starting positions in society and so, at the entry level, you bring them to a level playing field. Now, I disagree with how the government identif ies backwardness. However rich you get, you'll still be of the same caste. I think you should use economic criterion.
On the equality doctrine, there was a clear argument for asymmetry. Now, the Constitution is amended to provide quotas and promotions on consequential seniority, which basically means you get your promotion and you then use it to say you're senior and you claim further promotions on that basis. It's like an indefinite double promotion. The court struck this down saying, look, you do what the hell you want with backwardness, we'll generously endorse your usage of caste, but it should fit into a more coherent structure. Our Constitution was routinely amended for that, and it's not clear to me now what division of equality rests on.
You seem to view the Constitution as more than just a political text. It seems you've sought to interpret it as a document that affects a much larger society than just those who are part of its political system.
I th ink it does impact all of us. The Constitution isn't simply about what the prime minister can do or the president can't do. It's fundamentally what gives us and what sustains our membership in this community. So part of my hope has been that each of us need to engage with it far more rigorously because it affects all of our daily lives in profound ways. We see that in some ways - like in politics you'll see a [Arvind] Kejriwal saying, How can you not let me protest?
But there's little emphasis on really what the text says. A lot of it is going at a level of generality that's unhelpful. I certainly believe that it's relevant to people more than just political actors. I think it's relevant to everybody who's in this political community.
So why do you think Indians have treated the Constitution only in terms of generalities?
That's a really tough thing to say. It could be a limited emphasis on legal education. It could be the fact that we haven't tried enough. There could be a range of reasons for it, but I think that that ought to change. It's very important to realize that this is about all of us. In some sense, this is the fundamental document that gives us our identity. We are who it says we are.
(This interview has been lightly edited and condensed.)
Aayush Soni is a New Delhi-based freelance journalist and a recent graduate of the Columbia Journalism School. Follow him on Twitter at @aayushsoni.
