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Equal Voting and Common Knowledge: “Best Lights” Understandings of India’s Founding Democratic Constitutionalism

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Abstract

This review of Madhav Kkhosla’s book, India’s Founding Moment, sees his approach as one of “best lights” understandings, that is, an effort to identify and explain the conceptual underpinnings of India’s founding constitution in their best lights. Khosla emphasizes as key the ways in which the constitution’s requirements of full adult suffrage, its intense specificity of language, and its strongly centralized government form, all contribute conceptually to the creation of the democratic citizen of India—a citizen whose rights across the country were secured by a common constitution and central government, whose knowledge of and ability to exercise rights were enhanced by the constitution’s codified approach, and a citizen whose capacities to participate in democratic processes would be developed by the exercise of democratic rights. The review focuses attention on choices about suffrage, comparing India’s with the less inclusionary founding impulses of the United States constitution. It explores nuances of how codification would and would not promote exercises of citizenship rights, noting the importance of adjudication in the construction of the “common knowledge” to which (according to Khosla) the founders aspired. And the review argues that today, as more illiberal, authoritarian regimes are on the rise, the book’s emphasis on the importance of ideas, words, and common knowledge in constructing liberal, democratic politics is of urgent contemporary importance.

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Notes

  1. Khosla does not deny the role of disagreements and compromises that went along the way, including between major figures like Ambedkar and Nehru (pp. 39–43), but focuses on the overarching intellectual and conceptual engines of the constitutional founding.

  2. Krishna 1995, 162–66; Mansfield 2002, 313.

  3. See Ziring 1997, 219, Khan 2005, 99, 124; Elkins et al. 2009, 160–62.

  4. See Hill 2019, 192 (describing “voting without a choice”—the predominance of single candidate elections—as a leading characteristic of elections in the People’s Republic of China from 1949 to 2018).

  5. Women were enfranchised in France only in 1944. Mossuz-Lavau 1992. Not until 1971 were women enfranchised in Swiss federal elections, a 1959 referendum having failed to win approval of extending the suffrage to women; and it was not until the early 1990s that women in all Swiss cantons won the right to vote. See https://lenews.ch/2017/11/25/swiss-fact-some-swiss-women-had-to-wait-until-1991-to-vote/.

  6. In the USA, the effective disenfranchisement of persons of color in Southern states was notorious and had been for many decades before. See, e.g., Lawson 1976, pp. 1–22; Garrow 1990. Only after passage of the Voting Rights Act of 1965 did serious progress in enfranchising persons of color in many states occur. See, e.g., Lublin et al. 2009.

  7. See, e.g., Wilkinson 2004, pp. 1–18.

  8. See, e.g., Wilkinson 2004, p. 138; Thachil 2014, p. 456; Kapur 2020, pp. 42–43.

  9. See Census Organization of India, Census 2011, https://www.census2011.co.in/literacy.php (“When the British rule ended in India in the year 1947 the literacy rate was just 12%.”); Guha 2002, pp. 95–96 (stating that of the eligible voters in the first general election (1951–1952), 85% were illiterate, occasioning the use of paper ballots with symbols for voters to mark off). The election occurred with what was widely viewed as remarkable degrees of order, with 53 parties and 1800 candidates running for the roughly 489 seats in the Parliament; the Congress Party captured 364 out of 489 seats. See id. at 100 (also estimating that roughly 60% of eligible voters voted). Cf. Nohlen et al. 2001, p. 568 (reporting that in the 1951–1952 election for the House of Representatives, of 173,213,635 registered voters, a total of 105,944,495 votes were cast; also reporting that there were some two member constituencies where voters had two votes, and that the numbers of votes cast in those cases do not correspond to the number of actual voters; and that of the total theoretically possible number of votes (given the two member constituencies), 45.7% were cast).

  10. See http://legislative.gov.in/constitution-eighth-amendment-act-1959. Cf. Khilnani 1999, p. 37 (noting that while intended as a “temporary expedient to a less unjust society,” reservations gave caste categories “new vigour as political self-identifications”).

  11. See Personnel Adm’r of Massachusetts v. Feeney, 442 US 256 (1979) (rejecting challenge to civil service laws favoring military veterans notwithstanding severe disproportionate effect on female applicants, who had been disqualified from military service by virtue of sex); Washington v. Davis, 426 US 229 (1976) (rejecting heightened scrutiny for facially neutral civil service test notwithstanding disproportionate adverse impact on African-Americans); see also Lassiter v. Northampton Bd of Elections, 360 US 45 (1959) (rejecting challenge to facially neutral literacy requirement for voting).

  12. Rodriguez 2008, p. 1140.

  13. See, e.g., Andrews v. Law Society [1989] 1 SCR 143 (Canada) (noting that constitutional equality norms may be violated by treating dissimilar circumstances identically); Vriend v. Alberta, [1998] 1 SCR 493 (Canada) (treating as an equality violation the omission of a particular ground in a provincial anti-discrimination law); Fraser v. Canada (Attorney General), 2020 SCC 28 (Canada) (holding that exclusion of part-time work from credit towards pension had disproportionate adverse effects on predominantly female group of employees and violate the Charter).

  14. Galanter 1984, pp. 379–80.

  15. Creppell 1989. See also Briffault 2002, p. 1513, n.24 (reviewing Keyssar 2000); discussing the adoption of literacy restrictions in Connecticut and Massachusetts in the 1850s, and the existence of property restrictions in Rhode Island, as efforts to restrict the political power of immigrants and the newly emerging class of industrial workers).

  16. Creppell 1989, p. 36.

  17. Id. at 41.

  18. Id.

  19. Id. at 42.

  20. Id. at 43.

  21. Id.

  22. See, e.g., Lassiter v. Northampton Bd of Elections 360 US 45 (rejecting in 1959 a constitutional challenge to North Carolina’s English literacy requirement for voting).

  23. Voting Rights Act 1965 (US), Sect. 4.

  24. For an argument, based on studies of countries in the Americas, that literacy (and other) requirements for voting were associated with greater in-country inequalities and efforts by elites to maintain their privileged positions, see Engerman and Sokoloff 2005.

  25. See Zackin 2013.

  26. 17 US 316, 407 (1819).

  27. For a different conception, see Loughlin 2018 (arguing the role of constitutional silences in establishing frameworks for subsequent political deliberation and decision).

  28. On the role of directive principles in giving moral direction to political constitutionalism, see Khaitan 2019. Khaitan also notes how directive principles offer opportunities to accommodate political minorities. See Khaitan 2018.

  29. More specificity may or may not produce more constraint or determinacy. See, e.g., Dixon 2015, pp. 837–40 (arguing that detail about permissible limits on rights in India may have led to nonpurposive judicial interpretations); Melton et al. 2013, p. 417 (reporting that in a reliability study, the Indian Constitution had among the lowest levels of inter-coder agreement, and thus, arguably, the highest levels of textual indeterminacy).

  30. The discussion treats a procedural approach as one limiting judicial review to determining whether the statutory procedures have been followed. But cf. Chemerinsky 1999 (distinguishing “procedural” and “substantive” due process in the USA). The Indian framers, like the framers of the Canadian Charter, did seem to want to avoid the more substantive intrusions on the scope of legislative authority for which Lochner stood. See generally Choudhry 2004.

  31. See generally Jackson 2021.

  32. See Thomas 2015.

  33. See, e.g., Goldstein 1986, p. 66; cf. Michelman 1986, p. 66 (discussing “the judiciary’s role in representing to the community self-government in practice”).

  34. See, e.g., Gutmann 1999, p. 173; Daniels 2018. On how even constitutional disagreements can play a role in promoting common knowledge, see Thomas 2020.

  35. See Barua 1984, p. 111 (noting that indirect election of constituent assembly was through “a system … [that] conferred the franchise on approximately 11 percent of the total population”). Constituent Assembly members were chosen by the provincial legislatures, which themselves were elected (on restricted franchise) while India was still under British domination. The Assembly first met in December 1946; it sat for 166 days between then and its adoption of the Constitution in November 1949. See also Jacobsohn and Roznai 2020, p. 150 (summarizing Rajeev Dhavan’s view that the Assembly members were chosen “by provincial legislators whose selection had been decidedly unrepresentative”); Khilnani 1999, pp. 33–34 (describing Constituent Assembly as “overwhelmingly dominated by the upper-caste and Brahmanic elites within Congress”).

  36. See Ackerman 2019, p. 60. On public interest in the drafting of the Constitution, see De 2018, p. 2.

  37. See Ackerman 1994; Ackerman 2019.

  38. Cf. Ackerman 2019, p. 44 (describing India’s  “success in constitutionalizing its high-energy politics during the Nehru era”).

  39. See Elkins et al. 2009, pp. 92, 151–52 (“[I]nclusion, flexibility and specificity help constitutions to endure…. Specific documents are more likely to generate common knowledge and agreement on when a constitutional violation has occurred”; noting the inclusivity of the Indian drafting process as well as the range and specificity of its provisions); id. at 141 (constitutions with increased detail endure longer).

  40. Elkins et al. 2009, p. 139 (finding that “constitutions written under inclusive conditions …are more likely to survive than those that [are] not” and that public ratification of constitutions is associated with their greater endurance).

  41. Ginsburg 2010, p. 78.

  42. Schuck 1992, pp. 3–4.

  43. Id. at 4.

  44. See Stevenson 2014, p. 1129 (arguing that codification makes it easier for special interests to obtain legislation, and that for citizens, codification “mean increased legislative output, yielding rapid proliferation of statutes and unmanageable legal information costs”); Schuck 1992, p. 26 (“[T]he main producers, rationalizers, and administrators of law–legislators and their staff, bureaucrats, litigants, lawyers, judges, and legal scholars–generally benefit from legal complexity while bearing few of its costs[.]”). Complexity, Schuck argues, can help solve collective action problems for elected representative by making action possible at the cost of obscuring things for constituents. Id. at 29.

  45. Id. at 45–46 (describing Boris Bittker’s argument in tax context).

  46. Id. at 46 (suggesting that complexity in rules for voting and political competition might jeopardize legitimacy more than in regulation of food and drugs).

  47. See, e.g., Khaitan 2019, p. 621; Dixon and Ginsburg 2011. Cf. Brown 2017, 300–01 (suggesting that “inflation” of words addressing Islam in contemporary Arab constitutions reflects the increasingly public nature of constitution-making processes “designed to communicate general orientations, not to have specific legal effects”).

  48. Ginsburg 2010, pp. 86–87 (suggesting that because democratic states contemplate changes of power there will be more reason for contending parties to insist that constitutions cover certain contingencies with specificity).

  49. India Const art. 368 (2).

  50. Id. Art 368(2) (a)-( e).

  51. Irish Const. art 46.

  52. Khosla has suggested that India’s unconstitutional constitutional amendments doctrine might be viewed as making a claim that, given the preconditions for democratic constitutionalism in India, the court can represent the sovereignty of the people better than the legislature, a claim reinforced by the fact that the people have no role in either initiating or ratifying in the amending process. See Khosla 2018, p. 50.

  53. For example, effects on endurance may depend on what subjects a constitution is specific, or general, about, though I am not aware of any large-N tests of this proposition. Constitutional success may also be measured in different ways. For data suggesting that more specific constitutions, measured by number of words divided by number of topics, endure longer, see Elkins et al. 2009, pp. 103, 210; Hammons 1999. For data suggesting that longer constitutions are associated with lower levels of economic development, see Tseblis and Nardi 2014. On the effects of constitutional length on the rate of constitutional amendment, see Berkowitz and Clay 2005, p. 74 (suggesting that shorter state constitutions are amended less frequently).

  54. India Const. art 32(1).

  55. Id. 32(2) (“The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the.

    enforcement of any of the rights conferred by this Part.”).

  56. Id. 32(3).

  57. See De 2018, p. 9 (arguing that in the “Republic of Writs” created by the Constitution,  “the Indian Constitution profoundly transformed everyday life in the Indian republic …[in a] process was led by some of India’s most marginal citizens … [and] that the Constitution, a document in English that was a product of elite consensus, came so alive in the popular imagination that ordinary people attributed meaning to its existence, took recourse through it, and argued with it”). Re argues that across a wide range of economic activity—in litigation over cow slaughter, bans on prostitution, and price controls—the constitution came to life in the courts and in the attitudes of ordinary people (butchers, prostitutes, merchants). On the significance of the Framers’ rejection of substantive conceptions of due process, see id. at 220 (concluding that courts were most active in policing departures from fair process, and rejecting “burocratic arbitrariness,” rather than intervening on more substantive grounds).

  58. With respect to the Supreme Court, see India Const arts. 124(4), 125(2). With respect to the High Courts, see India Const. arts. 214, 218, 221.

  59. See De 2018. I thank Professor Khosla for recommending this book to me.

  60. Cf. Eylon and Harel 2006, p. 1018 (arguing that judicial review enhances participation, even though it differs from democratic participation by voting).

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Acknowledgements

Thanks to Sujit Choudhry for helpful comments on an earlier draft, and to Colleen O’Gorman and Sam Weinstock for very able research assistance.

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    Vicki C Jackson

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Jackson, V.C. Equal Voting and Common Knowledge: “Best Lights” Understandings of India’s Founding Democratic Constitutionalism. Jus Cogens 4, 35–55 (2022). https://doi.org/10.1007/s42439-021-00052-3

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