Summary: In this two-part piece, we present the final review in this book discussion on Prof. Mathew John’s latest book, India’s Communal Constitution: Law, Religion and the Making of a People. Following the reviews by Alok Prasanna Kumar, and Talha Abdul Rahman, Prof. Rinku Lamba shares her insightful, method-driven analysis of the book.
I. Introduction
India’s Communal Constitution: Law, Religion and the Making of a People (“Communal Constitution”) is a lucidly written book with a rigorously continuous line of argument that runs through all chapters and unites them together in an admirably focused and coherent manner. The book will be vital reading not only for scholars interested in the travails of constitutionalism and pluralism in postcolonial India but also for anyone interested in questions of colonialism, secularism and modernity more generally.
In the reflections below, my focus is primarily on the book’s methodological orientation, aspects of which I will illuminate by probing the book’s treatment of concepts such as “colonial” and “toleration.” I admire the tenacity with which John makes his way through the chapters to discern a communal shadow that may be lurking within India’s constitution. But I hope also to unravel some presuppositions of the book, especially those related to the author’s description of the project as a diagnostic one. The aim of this unravelling is to note that diagnostic scholarship, even when it is not prescriptive, has normative underpinnings that must be acknowledged. More fundamentally, even descriptive, non-prescriptive scholarship cannot be value-neutral. The description of historical or other empirical phenomena entails the use of concepts, which are the building blocks of the vocabularies used to describe events as matters of interest or concern, and these concepts are value laden. And concepts that are used to describe or decipher situations — empirical ones or hypothetical ones — are not value-neutral. Calling or labelling something democratic, entails choosing this concept to describe that thing as such, and that label brings into focus notions like legitimacy and popular will, at the very least. Further, the use of concepts enables analysis and diagnosis. All this may sound obvious. But frequently a reticence with respect to normative theorising, leave alone prescriptive theorising, tends to bracket the issue of the difficulty of value-free scholarship in law, politics, history or sociology.
II. On the Importance of Description Through Concepts
Mathew John’s book is devoted to unravelling the “communal aspects in constitutional design and practice.” (123) The alleged communal aspects have “belied and cohabited with the Constitution’s much celebrated liberal ambitions.” (123) Moreover, the putative communal slant in constitutional design and practice has also neglected seeing “the Indian people, and by extension minorities” as “part of a broader social plurality.” (86) Further, for John, “the British colonial state in India … was the historical backdrop against which constitutional imagination in modern India took shape.” (5) In fact, a key presupposition of Communal Constitution is that “colonial toleration” played a vital role in casting “the communal shadow that frames the Indian people and their constitutional identity.” (5) John claims that “toleration and the commitment to equal liberties … are clearly also a part of the Indian Constitution.” (23) Further: “And yet, even if the “commitment to equal liberties” is new, he says “it is important to note that the adoption of toleration as value choice precedes the Constitution and is policy with considerable vintage in the colonial state.” (23). The alleged presence of ‘toleration’ in independent India’s constitution, then, will have to be comprehended and analysed in consonance with the colonial vintage of that policy.
The book’s interest in features of the Indian constitution that supposedly detract from its liberal-secular credentials, and the book’s claim that aspects independent India’s constitutional politics with respect to religious matters resonate with policies of colonial toleration, makes Communal Constitution a very important site for reflections about the following terms and themes, among others — colonial, toleration, communal, majorities, minorities, liberalism, pluralism and religion. Attention to the senses of these themes is incredibly significant given both the recent currency of claims about the colonial slant of the Indian constitution, and the persistence of a pet peeve about the place of the doctrine of secularism in modern India. But attention to these themes is politically urgent too, and not just for the sake of advocacy or side-taking. Rather, the importance of clarity with respect to the different meanings that these themes and concepts denote — for recognising, describing and diagnosing political, legal, and/or constitutional conundrums — relates to how their use in public political discourse can aid or hinder political judgment in a diverse polity oriented toward a democratic order.
Keeping in mind some of these aforementioned issues, I approached John’s book exactly as he characterises it — as a “descriptive, diagnostic and explanatory project.” (130) John stresses that the “book has consistently bracketed off and distanced its gaze from the search for normatively preferred or correct solutions.” (130) Instead, he reiterates, the aim is to “disclose and make apparent contrasting forms of identifying the Indian people.” (46) Further, “in the place of normative arguments” the book wants to emphasise “communal aspects in constitutional design and practice that have belied and cohabited with the Constitution’s much celebrated liberal ambitions.” (123) Elsewhere, too, the author reiterates this diagnostic focus when he emphasises that attention to the essential religious practices test in independent India’s courts can provide “an opportunity to diagnose the condition made ripe for judicial engagement in religious hermeneutics.” Again, the author mentions how the second chapter of the book eschews “a full-blooded consideration” of “normative points of view” related to debates about a uniform civil code and the continuation of personal laws; instead, the aim there is to “disclose and make apparent contrasting forms of identifying the Indian people.” (46)]
III. On Normativity
Arguably, however, might not a certain degree of normativity attend to both diagnosis on the one hand and solution-giving on the other? And, in fact, even judgments about normatively desirable solutions or prescriptions may be deeply dependent upon a conceptually sound diagnostic reconstruction of important issues. How so?
To answer this question, it’s extremely helpful to consider Patchen Markell’s view about scholarship related to diagnosis, which nicely illuminates the importance of the “lucidity of the background vocabulary in which we represent, to ourselves and to each other, the nature of the political problems we face, the stakes of the decisions we confront, and the range of possibilities we possess.” Markell’s point is that discussions about political problems (many of which John’s book too raises — issues about secularism and pluralism, for instance), the very vocabulary used to describe and advance something as an issue of concern becomes important. Even descriptions of a situation presuppose background vocabulary, and that background vocabulary is crucial, among other things, for comprehending the “nature of the political problems that we face” and “the stakes of the decisions we confront.”
It is important to note, and I think John will agree, that uncovering the stakes involved in the decisions “we confront” need not entail taking sides on a matter or evaluating one as better than another. Rather, the task at hand could be to obtain proper information to comprehend something as a problem at hand. And what is needed for this is the generation of vocabulary that can perform this task of clarification. For example, John wants the reader to reckon with the stakes attached to a communal constitution, which could include, as he says, a dilution of the liberal secular credentials of the constitution. However, what is required here is for the reader to know what the author means by liberal secular credentials, not least since there is so much disagreement about what constitutes these credentials. Consider the charge of pseudo-secularism that abounds, or the claims about the irrelevance of secularism in the modern Indian context, or the problem that liberalism cannot say much more than protecting the rights of those holding private property. There is much in just the term liberal-secular that begs clarification, especially to show how group-based forms of identification (one of the senses of the term “communal” as used by John) can allegedly thwart liberal-secular purposes.
Markell draws our attention to the imperative need for a vocabulary of the sort that would help to comprehend the nature of the problem at hand — by describing that problem clearly, at the very least. Markell’s words further help to illuminate the issue here too by pointing out that “when an often-used vocabulary of this sort obscures as much as it clarifies,” the theoretical task becomes “at once diagnostic and reconstructive: to bring the obstruction into view; to demonstrate its implications; to understand its sources (for these things are rarely accidents or mere matters of careless thinking); and, in the course of all that, it becomes necessary to work toward an alternative and more perspicuous language.” So, what becomes required is a kind of theoretical scholarship that does the “background conceptual work” of a kind “not yet prescriptive, but certainly normative.”
I would underscore that it is the conceptual nature of the work at hand, the implications of which are normative, that stands out as important. We use concepts to describe phenomena — to make them comprehensible in a certain way, and our use and explanations of the suitability of those concepts are far from value-free orientations to the study of social, legal and political phenomena.
Evidently, then, when there are conundrums that beset the vocabularies being employed to describe relevant situations, the task of diagnostically-oriented scholarship — of the kind that John indicates he is interested in — is that of reconstructing obfuscating vocabularies, so that the problems at hand can be comprehended clearly. So, even as John’s decision to eschew normatively desirable solutions (by which I think he is referring to prescriptive solutions) is clear and acceptable, the reader will not be unwarranted in looking to the book for theoretical scholarship that is conceptually systematic and thus normative in the sense that Markell outlines above. That is, the diagnostic book’s indispensably normative feature lies in the way it enables lucidity — through a clear and systematic use of concepts — in the background vocabularies through which the reader can come to see something (i.e. a communal constitution) as an important problem to reckon with.
In an important sense, then, descriptions of the nature of a problem at hand are dependent on background conceptual work through which an issue at hand can be framed as a puzzle or a problem. To that end, the kind of conceptual work involved here cannot be value-free even when it is not prescriptive. For example, and to be sure, John is not interested in foisting or denouncing tolerance in independent India’s Constitution (or in the colonial state’s policy) as a value. However, John’s diagnosis-centred discussion of the connections between colonial and postcolonial times along the grid of tolerance cannot be value-free. This is because frameworks for understanding, comprehending, diagnosing, investigating or enquiring into human action rely on identification and clarification of the concepts that determine (and become determined by) political action in the human world (such as the work of James Farr and Charles Taylor on concepts and on interpretation in the human sciences, respectively). Reliance on such frameworks for understanding and explanation is separate from the task of identifying normative solutions or prescriptions for any conundrum.
In Part II of this review, I will reiterate my point about giving priority to conceptual work by drawing on the issues of colonialism, toleration, and modernity that the author has focused upon.
Notes and References
All in-text page references correspond to India’s Communal Constitution.
Patchen Markell. Bound by Recognition. Princeton University Press, 2003.
Dr Rinku Lamba teaches political theory at the National Law School of India University, Bangalore.
[Ed Note: This Book Discussion was coordinated and edited by Archita Satish and posted by Baibhav Mishra from the technical team of the Student Editorial Board]