Rupen Ghosh is a Delhi-based retired government officer with a keen interest in arts and literature.
Book Review: The Indian Constitution/Oxford India Short Introductions/Madhav Khosla/Oxford/2012
A wonderful addition to the literature on Indian Constitution is a fascinating study on the subject by a young legal scholar, Madhav Khosla, who was pursuing a PhD in Political Theory at Harvard University in 2012, when he wrote this interesting interpretation to some of the key constitutional questions that continue to generate interest and stimulate intellectual debate. The book is titled ‘The Indian Constitution (Oxford India Short Introduction Series)’. It is a marvellous attempt, giving an insightful and analytical account of one of the greatest political texts ever written. I must say that if the book could spark interest in India’s Constitution, it would have served its purpose and make the young author proud.
The book is evocative of the time when the Constituent Assembly set upon itself the onerous task of drafting the Constitution for independent India, a momentous event for the founding fathers. It was the occasion when Nehru observed that, ‘I tremble a little and feel overwhelmed by this mighty task; there is some magic in this moment of transition from the old to the new.’ It was a proud moment for the nascent republic that was emerging from the long shadows of feudalism and social backwardness to rightfully earn its place in the comity of nations, and the drafting the Constitution provided an occasion to ponder over as to what constituted its vision to be an Indian. It was a search for our identity; a young nation’s striving for a normative structure that should govern our polity, the rules of socio-economic and political governance.
As I read this fascinating book, I wonder that a document that was drafted six decades ago and having undergone over a hundred amendments, still retains its endurance and vitality, despite bruises acquired in its challenging and, what some may call as its, tortured journey.
The book highlights some of the challenges the Constitution faces and the evolution of legal interpretations that have embellished our understanding. Some of the chapters like separation of powers between the three organs of the State, the fascinating journey of federalism, despite retaining some of the prominent unitary features, the fundamental rights that are the bedrock of democracy and that are justiciable and any transgress of the rights is invalid and unlawful and the changes that have made the Constitution a dynamic and living document, add great value to the book.
It is well recognised, its critics’ carping and constant din of criticism notwithstanding, that the Constitution is an organic living document. It must be dynamic and keep pace with the changing times. We have also accepted that the basics and fundamentals of the Constitution are unalterable and the governments of the day have also respected the doctrine of the basic structure of the Constitution after the landmark Supreme Court judgements settled the issue; Golaknath, Keshavanda Bharati and I R Coelho judgements are too well-known to be reiterated here.
As the largest democracy in the world, a reading of the constitutional texts should be de rigueur for not only the political scientists and analysts, but also for everyone who would like to reflect upon the theory and practice of constitutionalism and would like to debate about what the idea of India signifies.
What is constitutionalism? It envisages checks and balances and legal constraints on the exercise of power by the executive and the legislature and keeping them under some kind of constraints. The very idea of constitutionalism is embedded in human history and is part of evolution of political philosophy. Staring from the Magna Carta (1215), some of the natural law philosophers who espoused the cause and promoted this idea are well known names in political and social philosophy – Thomas Acquinas, Tom Paine, Locke, Rousseau.
Madhav Khosla sums up the key essence of constitutionalism as the following: A written constitution, independent judiciary with judicial review powers, the doctrine of rule of law and separation of powers between different organs and institutions, democratic government responsible to the people and elected through a transparent process, fundamental rights of the people (that are the cornerstone of the Constitution), the principles and practices of federalism, decentralised governance with power to the grassroots level self-governing institutions. What Khosla’s book brings out is that the Indian Constitution is unique in the sense that it bestows identity to over 1200 million people, giving a constitutional fabric which is in sync with some of the finest ideas of democratic governance, drawing as it were from the country’s eclectic and syncretic past, its fascinating journey of assimilation and accommodation all through the centuries, and also imbibing some of the finest democratic features and practices from the American, Canadian, Irish and Australian Constitutions and the British Constitutional Law.
There is consensus that the Constitution draws upon a rich fount of knowledge, wisdom, learning, heritage, conventions and traditions to craft a unique document that provides a social, economic and political philosophy best suited for the governance of this heterogeneous and variegated land and espouses some of the finest values of republicanism, liberty, equality and fraternity, the rule of law and the fundamental rights and a spirit of egalitarianism as reflected in the Preamble as well in the Directive Principles of the State Policy.
The unique and sui generis nature of the constitutional journey has been the realisation that the Constitution has provided a platform and framework for accommodation and articulation of millions of aspirations, conflicting at times, and despite its somewhat turbulent journey and the charge that the individuals who were called upon to work it didn’t fulfil the roles expected of them, it has not only afforded opportunity to its socially and economically underprivileged citizens to dream and aspire for a better future and demand a place under the sun for righting some of the historical inequities and wrongs, it has shown remarkable endurance, sustainability and vitality to guide the destiny of this remarkable land of over a billion people.