1 Introduction

The central question for this essay, reflecting on Madhav Khosla’s important book,Footnote 1 is the relevance of the story of the Indian founding to constitution making around the world in the twenty-first century. This is not the principal focus of the book, which is a study of the ideas that animated the Constitution that was made in and for India after independence from colonial rule in 1947. The question is latent, however, in Khosla’s observation that the events chronicled in the book “marked the historical node at which democracy, constitutionalism, and modernity occurred simultaneously”.Footnote 2 It is prompted further by Khosla’s interpretation of the actions of the Indian founders as a deliberate attempt to fashion a Constitution “that could meet the challenges of constituting democracy in an inhospitable environment”, raising questions that are familiar in “radical transformations”.Footnote 3 It is explicitly raised in the final chapter, where Khosla points to the inhospitable conditions in which many contemporary Constitutions have been made, notes their sometimes disappointing outcomes and offers the Indian founding as a “critical reference point” from which guidance might be drawn.Footnote 4

The essay explores the question through three themes that run through the book and that also provide a workable analytical framework for the current phase of constitution making, which covers the decades spanning the turn of the twenty-first century to the present day. The themes are people and process (which, as will be seen, necessarily are combined); the substance of Constitutions; and global influences. Examination of these themes is preceded by consideration of the global dissemination of the idea of a “modern” constitution from the end of the eighteenth century, so as to put the Indian experience into temporal context, testing claims for its distinctive achievements.

To anticipate the conclusion, I suggest that the principal value of the Indian example lies in its emphasis on the development of a democratic people through the principles and processes for which a democratic Constitution provides. I think that Khosla is right in his intuition that the people of many other states that now embark on constitution making exercises are as unprepared to play the key role that democracy assumes for them as were the people of India on the eve of Independence, at least when democracy is delivered through state institutions that owe their present shape to western historical experience. I also draw attention to other aspects of the Indian case that made the Indian approach possible and deserve attention for the purposes of contemporary constitution making. These include the ownership of decisions about constitutional process and substance by Indian leaders, representing the people.

The direct applicability of the Indian example should not be overstated, however. In matters of important detail, it was necessarily anchored in the particularities of the Indian case, including the nature of the societal divisions as they had evolved under colonial rule, attracting substantive constitutional solutions that would not necessarily be applicable elsewhere. The world of constitution making has moved on in 70 years, moreover, as might be expected. Many of the challenges for constitution making now reflect both the possibilities and the pathologies of post-modernity, to which the Indian founding provides at best a general guide.

2 The Indian constitution in historical context

In the opening chapter of the book, Khosla presents the central dilemma of the Indian founding as the introduction of democracy into “an environment unqualified for its existence”.Footnote 5 The particular problems to which he points are poverty and illiteracy; caste, religious and linguistic divisions; and the weight of tradition. The Indian experience was distinctive, because democratisation and constitution making took place at the same time, in the context of decolonisation. By contrast, in western states, democratisation evolved over time, from ideas that were broadly familiar and in settings in which a form of constitutionalism was already in place. Khosla argues that Indian political leaders consciously chose to meet this challenge through the constitutional and political order they devised, melding western ideas with the realities of local conditions. India thus should be seen as the “paradigmatic democratic experience” of the twentieth century, on a par with the role of the United States the century before.Footnote 6

The story of the global spread and reception of the idea of a written Constitution from the end of the eighteenth century to the decolonisation movement that began after World War II is complex and varied. Over this period, written constitutions came into use in states in every region of the world. Many of these had populations that were unfamiliar with and unprepared for written constitutional forms, often for at least some of the reasons that Khosla identifies in India. Nevertheless, Khosla’s claim for the significance of the Indian achievement is sustainable, although whether India is unique would require more detailed research. The initial spread of written Constitutions outside North America, Western Europe and the British Dominions often involved the adoption of western forms for instrumental purposes, rather than providing a vehicle for democratisation, in which the temper of the people mattered.Footnote 7 Even where democratisation ostensibly was the goal, as in parts of Latin America during the nineteenth century, the democracies were short-lived and the constituencies for which they provided were narrow.Footnote 8

Global aspirations changed after World War II, with decolonisation. India and neighbouring Burma were at the forefront of colonies seeking independence on the basis of a constitutional democracy.Footnote 9 There were connections between these two processes, which would have been an interesting side-note in Khosla’s account.Footnote 10 Burma is no competitor to India as constitutional exemplar, however; its democracy failed early, for reasons particular to its own conditions, while India’s survived.Footnote 11 Over the ensuing decades, decolonisation had other mixed results from the standpoint of democracy, arguably reinforcing the potential relevance of the Indian example.Footnote 12 Even as the century wore on, however, some states adopted constitutions with an eye to economic development rather than democratisation, leaving the latter to follow later, if it followed at all.Footnote 13 The respective merits of these two approaches remains a live debate, given impetus through the influence of China.

If we fast-forward to the current phase of constitution making, the potential for insights from the Indian experience is mixed. It is now trite that, in the wake of the geopolitical changes that followed the end of the cold war, well over half of the Constitutions of the states of the world have been remade or substantially changed.Footnote 14 In a few cases, new states have emerged from territorial restructuring, requiring de novo Constitutions as well.Footnote 15 Almost all this activity has taken place in what might be described as the Global South, viewed from a constitutional perspective.Footnote 16 In most, although not all, cases, constitutional change has been linked to democratisation, in a move from authoritarianism of some kind. Historical colonial status continues to be a major contributor to current conditions in many cases, although for the most part the legal formalities of decolonisation are long since over. In many cases, also, large parts of the population are no more familiar with the requirements of democracy within the institutional framework of a modern state than were the people of India in the 1940s as Khosla describes them.

These factors suggest that the Indian example has continuing salience, as Khosla suggests. On the other hand, there are other characteristics of the current wave of constitution making that point to the need for nuance in the lessons drawn from it and the way that they are applied. One is the information revolution, with its associated technology, which has spread some understanding of some democratic forms much more widely than before, creating assumptions and expectations to a degree that is difficult to assess. Another is the multi-faceted phenomenon sometimes described as “democratic decay”, the implications of which are still playing out, but which has served to dim some of the sheen of traditional democratic forms.Footnote 17 An important third is the link between intra-state peace making and constitution making that has been prevalent in recent decades. A need to end hostilities though constitutional commitments in a peace agreement changes the dynamics of constitution making and may limit the range of options on which constitution makers can draw.Footnote 18

3 People and process

Khosla’s central perception is that the founders of India’s Constitution took its constituent function seriously. They reached beyond the introduction of democratic institutions for “a form of government where behavior had common meaning”, thus “validating the use of authority”.Footnote 19 They would do this through codification, centralization and representation, which collectively would serve as a form of “political education”, designed to develop citizens from subjects.Footnote 20

On this account, Indian political leaders tackled the problem of a people unprepared for the roles that democracy would require of them through the form and substance of the independence Constitution, rather than through the process by which it was made. They did not discount the significance of process.Footnote 21 A sovereign Constituent Assembly, which independence was deemed to require, would need to be accepted as legitimate, representing the people in some way, and this seems to have been the case. Despite early calls for an elected Assembly, however,Footnote 22 the body that ultimately drafted the Constitution of India, in the aftermath of partition, comprised a mix of members indirectly elected from provincial legislatures (themselves elected on a limited franchise) and chosen from the princely states.Footnote 23 Khosla describes it as having “limited socioeconomic diversity”.Footnote 24 Insofar as there was a shortfall in its democratic credentials, the relative ease with which the final Constitution could be changed, by representatives of a now democratic people, offered compensation.Footnote 25 The Assembly was dominated by the Indian National Congress. It doubled as the first Parliament of India, after independence in 1947, handling these quite different dual functions relatively well.Footnote 26 As a sovereign Assembly, it assumed the authority to ratify the Constitution, bringing it into effect as fundamental law. There does not appear to have been any systematic attempt to engage the public directly with the process which might, in any event, have been both difficult and tokenistic in the conditions of the time.

In the twenty-first century, a typical constitution making process is almost the obverse of the Indian experience. I leave aside for the moment whether and, if so, to what extent, the form and substance of a new Constitution is likely to be tailored to the challenge of developing a democratic people, at least in a way that takes local particularities into account. Whatever the answer to that question, consideration of the centrality of the people is reflected most obviously in the process through which the Constitution is made. Public participation and inclusion is now de rigeur, not only indirectly, through the composition of the constitution making body, which almost invariably is elected, but directly, through forms of public engagement and, increasingly, through acceptance of the Constitution by referendum as well.

The contemporary emphasis on public participation in constitution making can be traced to the innovative process followed in South Africa in 1995.Footnote 27 The need for public participation was taken up by the Commonwealth Human Rights Initiative in recommendations to the Commonwealth Heads of Government Meeting (‘CHOGM’) in 1999.Footnote 28 It received further impetus from the work of the late Vivien Hart, from 2003, which provided a conceptual framing for public participation in constitution making and also justified it as an emerging human right under international law, drawing on earlier, influential work by Thomas Franck.Footnote 29 It has been repeatedly endorsed by the United Nations (UN) as a “guiding principle” for constitution making.Footnote 30 As a recent UN Development Programme report shows, it has been a feature, in some form, of most constitution making exercises over the past few decades.Footnote 31

The purposes of public participation in constitution making is described in various ways. It is claimed that public participation enhances legitimacy and thus leads to broader acceptance of the ConstitutionFootnote 32; that it gives the people some experience of aspects of democratic governmentFootnote 33; and that it encourages greater understanding, respect and support for the Constitution.Footnote 34 If these claims are correct, public participation can give practical effect to the symbolism of constituent power while actively preparing a people for the requirements of democratic governance. To some extent, at least, therefore, the purposes ascribed to public participation in the process of constitution making overlap with the concerns to which Indian political leaders responded through the substance of the constitution.

There is an obvious question about whether the absence of public participation in the Indian constitution making process, coupled with the success of the transition that followed, offers any insights for the prevalence of the practice today. The answer might be that it does not; that current practice merely means that constitution making has moved on, incorporating public participation as another way of educating citizens, in a world where transnational initiatives and international legal norms have increasing influence. Aspects of the contemporary context lend some support to this narrative as well. Much contemporary constitution making takes place in conditions in which there is a deeply divided population still emerging from conflict and political leadership that is not necessarily trusted or capable of representing the people as a whole. In these circumstances, public participation may have the potential to play a unifying role and build constitutional legitimacy.

The narrative may be correct, as far as it goes, but there is more to be said. The place of public participation in constitution making is much less settled than the repeated endorsement of the practice suggests. It may take a variety of forms, ranging from what Saati has characterised as “false” to “substantial” participation, on the choice of which its effectiveness to achieve any purpose depends.Footnote 35 Uncertainties about form and purpose feed into questions about the relative value of public participation, vis-à-vis processes designed to secure an effective and workable democratic constitutional settlement to which political elites, to whom implementation necessary falls, are committed. Surprisingly despite, now, long experience with public participation during constitution making, the jury is still out on the extent to which, and the ways in which, it makes a difference.Footnote 36

The Indian case might be assessed as offering at least the following insights for contemporary constitution making processes. First, public participation is no substitute for tailoring the Constitution itself to the task of building an engaged citizenry, where that it necessary, although it may play a complementary role. Second, some of the pressure is taken off public participation where the Constitution is negotiated, drafted and approved by representatives who can accurately claim to speak for the preponderance of the people, especially where these representatives ultimately will have the task of putting the Constitution into effect.Footnote 37 Despite the success of the Indian and South African cases in this regard, however, it should be noted in passing that a dual function Constituent Assembly is not necessarily a panacea. The example of the Constituent Assemblies of Nepal demonstrate the difficulties of effectively combining ordinary politics with the constitution making moment. Third, the legitimacy of a Constituent Assembly depends on its acceptance as a sovereign body with authority to draft a Constitution. Election of members is the usual touchstone for legitimacy, but is not always practicable and may not always be sufficient. In its absence, legitimacy may be built in other ways.

4 Constitution

Khosla tells a sophisticated story of how the Indian framers devised a Constitution to actively support transition to democracy. The story is developed around the three nodes of codification, centralisation and representation. Each is elaborated by reference to the ideas of the founders and the generations that preceded them and, importantly, their relevance to the Indian condition. Each is animated by a broad purpose: the provision of common understanding on the basis of which democracy can be built; the creation of an equal relationship within a shared state; and reliance on electoral arrangements consistent with individual agency.Footnote 38 Some of the solutions, of which reserved electoral quotas for lower castes is an example, were tailored to the particularities of the democratic challenge in India.Footnote 39 Most, however, appear to respond to challenges that are familiar in constitution making contexts around the world, at least at a level of generality, including depressed socio-economic conditions, lack of experience with democratic self-government and the influence of traditional, communal ties. There is an obvious question in these circumstances whether the way in which India harnessed the form and substance of the Constitution to effectuate the transition from subject to citizen offers lessons for others elsewhere.

The principal lesson lies in the endeavour itself. The role of the people is central in any transition to democracy. Unfamiliarity with the assumptions, institutions and practices of democratic self-government is a common phenomenon in many contemporary constitution making contexts. The perception that this might be tackled through the form and substance of the Constitution is potentially critical and demands consideration. So too does Khosla’s warning that, in designing constitutions for new democracies in the Global South, preoccupations and preconceptions derived from experience in the Global North may be unhelpful, despite their apparent global currency. He uses as one illustration the long-running controversy over the respective merits of political and legal constitutionalism, which can have little relevance in states without the developed and reliable institutions on which each of those positions relies.Footnote 40

There is no indication in Khosla’s book of the extent to which India was successful in using the Constitution to develop a democratic citizenry, although the longevity and resilience of the Indian Constitution suggest that it succeeded to a degree. For present purposes, in any event, the particulars of the strategies that India adopted and that Khosla explains responded to what the framers perceived as Indian needs. It may be noted that some of these strategies have now become common currency in any event. Many of the mechanisms that Khosla explored are familiar features of contemporary constitutions, albeit in modified form: long, codified constitutions, now typically written in more accessible terms than that of India; socio-economic rights now, often, justiciable; provisions identifying the bases on which rights may be limited; and common voter rolls. Further, while at first glance the Indian focus on centralisation is contrary to current trends in favour of devolution, the Indian federal or quasi-federal design is very similar in effect to many more recent federations including, for example, that of Nepal.Footnote 41 Even so, a serious endeavour in other contexts to develop the democratic quality of the people through the operations of the Constitution might adopt different measures or similar measures in a different mix. On any view, it might supplement these measures with others as, indeed, happened in the Indian case.

There is, of course, a question whether contemporary constitution making already seeks actively to develop a democratic people, emulating India to this extent. My impression is that it does not. The particularities of the people are taken into account for other constitutional purposes, including the design of mechanisms to manage conflict or to accommodate religious and linguistic diversity. The democratic temper of the people seems rather to be assumed, however or, at least, assumed to be adequate. The universalism of this assumption is reinforced by the emphasis on the incorporation of the gist of international human rights in new constitutions. Potential problems for the effective implementation of democracy in contexts where it has not existed before are anticipated, not by strategies to build a democratic people, who can operate democratic institutions and hold them to account, but by a proliferation of constitutional “fourth branch” institutions, outside the democratic process.Footnote 42 One potential virtue of the Indian experience, as recalled in Khosla’s book, could be to refocus attention on the essentials for transition to democratic self-government, and on what needs to be done to make it a reality in challenging contexts.

5 Global influence

A third theme of the book with relevance for contemporary constitution making is implicit, rather than explicit. It involves consideration of the ways in which external influences shaped the process and substance of the Indian Constitution.

It is clear from Khosla’s account that constitutional law and practice elsewhere in the world had a significant impact on the final form of the Indian Constitution, the assumptions that underpinned it and the process by which it was made. Indian leaders were familiar with constitutional arrangements elsewhere. Khosla refers in particular to the familiarity of B.N. Rau and others with the Constitution of the United States and of Nehru with state building in the Soviet Union.Footnote 43 He describes how some of the key debates were influenced by global experience, as sources of ideas, prompting reflection rather than transplant. To take one example: the Indian debate over the choice between procedural and substantive due process was informed by an understanding of these doctrines and their outcomes in the United States and resolved in favour of the former, on the basis that it was more suited to the Indian setting in the short term.Footnote 44 It is likely that the range of international constitutional influences extended beyond those Khosla mentions to a wider field. A 1947 Assembly Committee report listed the foreign influences on fundamental rights alone as including the Constitutions of Switzerland, Weimar, Ireland, Yugoslavia, Czechoslovakia and China, as well as the United States.Footnote 45 Access to these and others was assisted by a volume on Select Constitutions of the World, prepared in 1934 by B.S Rau, Benegal Narsing’s brother.Footnote 46

Inevitably, the Indian Constitution was influenced by British constitutional constructs as well, including those put in place during the long colonial period. Khosla is somewhat defensive of the extent to which both text and institutional practices from the Government of India Act 1935 were carried over into the independence Constitution arguing, in effect, that such provisions took on a different character in conditions of democratic self-government.Footnote 47 He may be right, although the use that has been made of, for example, the presidential power to make ordinances, gives pause for thought.Footnote 48 In principle, however, there is much to be said for preserving some existing institutions where they can fit with a new regime as long, at least, as allowance is made for the possibility that some of the behaviour associated with them may be preserved as well, unless precautions are taken.

The general point that Khosla makes about the potentially transformative effects of democratic self-government, designed to respond to local realities, is important. Any constitution, made at any time in modern history, has drawn on the constitutional experiences of others. The challenge is to select usefully from the wealth of experiences and to adapt and combine them in ways likely to achieve the outcomes that are sought in the new location. This enterprise runs through the Indian founding story. Khosla suggests that the Indian orientation was “a certain kind of universalism” made possible through engagement with local reality.Footnote 49 The point could perhaps be made more strongly: the form and substance of the Indian Constitution was animated by universal aspirations and global constitutional experience but was shaped by the Indian context and settled through a contest of ideas between Indian leaders.

Central to this process was Indian control of the project. In this respect, Indian experience is in stark contrast with many other constitutional moments over the past three decades, in which international actors have been actively engaged.Footnote 50 While the degree of international involvement varies, in present conditions, most constitution making in the Global South is likely to be accompanied by assistance, support and advice from UN agencies, regional and foreign governmental institutions and international and national NGOs. Where constitution making is preceded by conflict, as often is the case, international involvement may be more formally determinative, including through a peace-making phase. Had Partition occurred in the twenty-first century, with its associated violence, the Indian constitution making experience would have been very different as well.

In a sense, the proprieties associated with the quintessentially sovereign act of constitution making for a theoretically sovereign state continue to be observed. It can be argued that much of the international engagement merely serves to make more accessible international constitutional experiences that the Indian framers needed to collect and collate for themselves. The importance of national ownership and leadership is regularly acknowledged as a key principle.Footnote 51 Constitutional assistance often is described as “technical” and while offers typically are pressing, acceptance formally is voluntary, absent binding Security Council action. Final decisions remain in the hands of national actors, albeit following processes that are likely to bear the hallmarks of international pressure as well.

However international involvement in constitution making is analysed, generally or in a particular case, it has by-products that are relevant for present purposes. Not the least of these is the portrayal of constitutional assistance as a technical matter, lending itself to standard solutions, drawn from international best practice. There is little room in this schema for reflection on the preparedness of the people themselves for democratic self-governance and limited opportunity to consider how such a challenge might be met.

The Indian dynamic is instructive in these circumstances. It shows what can be gained through a constitution making process, seeking democratic transformation, which is genuinely nationally led. The outcome may not be perfect, but it is responsive to local conditions and locally owned. These factors in turn provide impetus for implementation of the new Constitution and are a source of resilience when problems arise. International involvement is likely to continue to be a feature of national constitution making in twenty-first century. The example of the Indian founding shows what is at stake, however, and offers a guide to the limits that should be observed.

6 Conclusion

In the second decade of the twenty-first century, global constitution making, perceived as a necessary step for liberal democratic transition, may be arriving at a watershed. Many of the transitions secured over the past three decades prove to have had shallow roots. Others have stalled before transition is accomplished. International constitution building assistance, which has driven and shaped much of this activity, lacks clear goals, standards and parameters. Peace making and peace building assistance, similarly, is encountering the reality of decidedly mixed achievements. The future of these aspects of global constitutionalism is made even less predictable by the two catastrophes presently sweeping the world: the pandemic, with the economic consequences that certainly will follow, and climate change. Liberal democracy itself is under challenge from the greater prominence of China and the dwindling reputation of key states that previously were its standard bearers.

Against this backdrop, the story of the Indian founding has much to offer those seeking transition to a form of government with the advantages that democracy can bring. The Indian case cannot be directly translated to modern conditions because too much has changed over the intervening seventy years. But it offers a series of insights and some inspiration. Central to these is the perception that the people themselves may need preparation for the roles that democratic self-government requires of them and that this should be an animating goal in designing the constitution by which democratic self-government is framed. The Indian case also suggests that the capacity both to perceive the problem and to respond to it as they did, depended on national leadership of the constitution making process and national consciousness of the magnitude of the undertaking.

The various crises of democracy in the early twenty-first century call for some rethinking of institutions and practices in the light of historical experiences and contemporary global conditions. In these circumstances, it may be time to take a step beyond the vision of the Indian framers, to ask not only how democracy, as then understood, can be secured in culturally inhospitable conditions but also whether democracy itself might be enhanced by drawing more broadly on other traditions of government that are compatible with it. Such a step could advance the project of connecting people in different parts of the world with the principles and practices of democratic self-government, while enriching global understanding of what democracy involves and how it might be given effect. This was not the project of the Indian founders, grappling with the attitudes, external and internal, shaped by colonisation. It may be a sign of the progression of decolonisation that it seems useful and relevant now.