Workshop my Paper Series – Grand Narratives of Transition and the Quest for Democratic Constitutionalism: Response to Commentators

Theunis Roux

Theunis Roux is Professor, and Head of the School of Global and Public Law, at UNSW Faculty of Law & Justice.

I would like to begin by thanking Anmol Jain for initiating this discussion of my article, and to all the commentators for their stimulating thoughts. Thanks also to Lizzy Perham in her capacity as IACL-AIDC Blog Co-editor for overseeing the process.

Rather than responding to each comment seriatim, I will engage with what I take to be the three main themes running through them: (1) the existence of a diverse tradition of anti-colonial thought in India not fully captured by the dichotomy I draw between the Liberal-Progressivist and Culturalist Grand Narratives (the LPN and CGN); (2) the value of using that dichotomy as a heuristic device for understanding debates over the future of constitutionalism in India and South Africa as against recognising a wider variety of constitutionalisms; and (3) the generalisability beyond India and South Africa of the dialogue I reconstruct between the LPN and the CGN.

(1)    India’s diverse tradition of anti-colonial thought

Four of the eight responses are penned by scholars working in and on India, and thus it is not surprising that one of the major themes running through them is the extent to which my deployment of the LPN/CGN dichotomy does justice to the full richness of India’s anti-colonial tradition.

Mathew John, for his part, presses me to explore more fully the Gandhian tradition of anti-colonial thought, which he sees as crucially distinct from the liberal-progressivist and culturalist traditions on which I focus. Gandhi, John argues, countered the colonialist denial of the existence of a cohesive Indian national identity by invoking India’s rich history of religious pluralism, ‘individual self-making’ and ‘sustainable forms of engagement with the natural world’. That approach was in stark contrast to the Hindu nationalist movement, which chose to depict the Indian people as unified around a single religio-cultural tradition. The Gandhian line of thinking therefore provides a viable alternative to the LPN/CGN opposition with which my piece is preoccupied.

I am grateful to John for this suggestion, and I certainly need to deepen my understanding of the distinctiveness of Gandhi’s line of thought. In acknowledging that, however, John’s characterisation of Gandhi’s intervention as standing outside the cultural-nationalist tradition explains why I chose to de-emphasise it. Focused as it was on the two main, currently competing ways of narrating the Indian constitutional transition, my piece necessarily paid more attention to lines of thought that could be subsumed under the CGN. That is not to say that Gandhianism is not an important part of India’s tradition of anti-colonial thought or that it does not have a significant role to play in thinking about the future of Indian constitutionalism. It is simply to note that it was peripheral to my concerns in this piece.

Sarbani Sen also mentions ‘Gandhian thinking’ in the context of a point about ‘whether decolonial CGN critiques really rise to the level of a coherent and substantive contemporary counter grand narrative to LPN’. Like John, Sen emphasises that there were many competing strands of anti-colonial thought within the Congress Party at the time the Indian Constitution was drafted, and that not all of these can be reduced to either liberal-progressivism or cultural nationalism. To that extent, she agrees with John that the future of Indian constitutionalism doesn’t necessarily lie in drawing out the common conception of constitutionalism underlying the LPN and the CGN. To do that would be to give too much credibility to the cultural nationalists who have yet to explain how their ideology provides a viable route to an inclusive constitutional democracy. Nevertheless, I detect in Sen’s response more sympathy to the notion that some of the other, non-culturalist anti-colonial strands she mentions were incorporated into the new tradition of constitutionalism that was unleashed from 1950. To that extent, she appears to think that there is something in the LPN’s contention that the Indian transition to constitutional democracy was not simply a unilateral process in which Western ideas occluded local traditions of constitutionalist thought. Rather, it was a syncretic process through which liberal constitutionalism was re-imagined and culturally pluralised even as it supplied intellectual resources for constitution-making.

Arghya Sengupta makes the important point that the fact that there may be a shared ideal of constitutionalism underlying the LPN and CGN does not mean that their proponents will be able to agree on the means of realising that ideal. My argument does not depend on that contention, however. The existence of a broadly shared ideal of Southern democratic constitutionalism (SDC), I say, is the basis for a conversation between those two narratives about the best means of getting there. It is accepted, in other words, that there will be disagreement over the form of a revised Indian or South African Constitution. The normative work that SDC does is not to preclude the need for a conversation about that issue but to demarcate its parameters and support its possibility. Beyond that, Sengupta is keen to prosecute the case he makes in his recent monograph that the 1950 Indian Constitution did not make a sufficient enough break from India’s colonial past, but that now is not the time to be revising it. Many scholars would likely agree with those propositions, while perhaps being more explicit than Sengupta about the kind of Constitution they would like to see enacted when conditions for constitutional reform are more propitious.

Anmol Jain offers four distinct critiques of my piece to which I cannot do justice here. He argues, first, that the two narratives I present oversimplify the Indian constitution-making process; second, that subsuming the decolonial critique within the CGN essentialises it; third, that the CGN’s institutional-design proposals may be less democratic than I suppose; and, fourth, that there is a need for south-south borrowing when thinking about how best to revise the Indian and South African Constitutions. To a certain extent, I have already responded to the first two critiques in my response to John’s contribution. The LPN and CGN are heuristic devices intended to capture the two main, currently competing narratives about the Indian and South African constitutional transitions. As such, they are not offered as my interpretation of all the influences on those processes. They are rather my reconstruction of two dominant strands of thought, each of which suppresses certain facts and countervailing arguments in its quest for ideological hegemony. That there are gaps and omissions in each narrative is thus to be expected. Likewise, the rendition of the CGN that I put into conversation with the LPN over constitutional reform is a deliberately charitable rendition that is not meant to capture all conceivable examples of cultural-nationalist thought. Finally, on the south-south borrowing point: I agree that such borrowing will be integral to any constitutional reform process in India and South Africa. The organisation of that reform process around the shared ideal of SDC makes such borrowing more imperative than less.

(2) The value of using the LPN/CGN dichotomy as a heuristic device

Michael Riegner, Tom Daly, and Heinz Klug all question the utility of the LPN/GCN dichotomy as a heuristic device in contrast to research approaches that proceed from the premise that there are many different varieties of constitutionalism. None of them, however, disputes the contention made in my piece that this dichotomy represents the main fault-line running through contemporary debates over the nature of India’s and South Africa’s constitutional transition. Rather, their point is that, when one studies constitutionalism, one should be alert to the many forms in which it comes. I do not disagree with that contention, and thus there is no real joinder of issue between the four of us. My point in presenting the two narratives was not to argue that these are the only two varieties of constitutionalism worth studying or to say that all varieties of constitutionalism may be subsumed under them. It was simply to offer them as heuristics for understanding contemporary debates in India and South Africa. The LPN and the CGN are, in any case, not varieties of constitutionalism but narratives about the Indian and South African constitutional transitions. There is a category error, in that sense, in this set of responses to my piece. We are talking about different things in pursuit of fundamentally different research questions.

(3)     The generalisability beyond India and South Africa of the conversation I re-enact between the LPN and the CGN

I am pleased that both Roberto Niembro and Tom Daly found some resonance in their home countries (Mexico and Ireland) of the two grand narratives I say are in contention in India and South Africa. While I have been stressing until now that the LPN and CGN are heuristics used to understand contemporary debates in those two countries, I do think that they capture something more generalisable about the fate of liberal constitutionalism in our multi-polar world. As I say in my Grand Narratives piece, India and South Africa were emblematic of the 1990s ‘end of history’ moment when liberal democracy appeared to have triumphed as the only governance game in town. The current challenges to liberal constitutionalism in those countries are for the same reason exemplary of many other current ‘contestations of the liberal script’ in which the universalising claims of liberal constitutionalism are being dismissed in favour of more autochthonous alternatives. Whether that be in the form of Hindutva ideologues’ call for a return to India’s pre-Mughal governance forms or former President López Obrador’s invocation of a distinctly Mexican constitutionalist tradition (as Niembro relates), the depiction of liberal constitutionalism as a culturally one-eyed and therefore alien and disempowering tradition is a discursive move that is being repeated in many different guises in the world today. The LPN’s persuasiveness in India and South Africa therefore holds profound implications for liberal constitutionalism’s future trajectory more generally.

Theunis Roux is Professor, and Head of the School of Global and Public Law, at UNSW Faculty of Law & Justice.

This post is the final post in the symposium, guest edited by Anmol Jain, responding to Theunis Roux’s article ‘Grand Narratives of Transition and the Quest for Democratic Constitutionalism in India and South Africa’.

Suggested citation: Theunis Roux, ‘Workshop my Paper Series – Grand Narratives of Transition and the Quest for Democratic Constitutionalism’ IACL-AIDC Blog (3 June 2025) Workshop my Paper Series – Grand Narratives of Transition and the Quest for Democratic Constitutionalism: Response to Commentators — IACL-IADC Blog