WE THE PEOPLE

a symposium on

the Constitution of India

after 60 years, 1950-2010

symposium participants 12 THE PROBLEM Posed by Ananya Vajpeyi, Department of History, University of Massachusetts, Boston 17 WHAT IS CONSTITUTIONAL MORALITY? Pratap Bhanu Mehta, President, Centre for Policy Research, Delhi 23 THE SOCIAL QUESTION AND THE ABSOLUTISM OF POLITICS Uday S. Mehta, Distinguished Professor of Political Science, Graduate Center, The City University of New York (CUNY) 28 FROM ‘NITI’ TO ‘NYAYA’ Amit Sibal, Advocate, Supreme Court of India, Delhi 35 TRANSFORMING EQUALITY IN INDIA Salman Khurshid, Union Minister of State for Corporate Affairs and Minority Affairs, Government of India 39 THE DALIT CONTRACT WITH INDIA Vinay Sitapati, Graduate Student, Department of Politics, Princeton University 43 BEYOND THE SOCIAL CONTRACT Rohit De, Lawyer; Doctoral Candidate, Department of History, Princeton University 48 CONSTITUTIONAL DURABILITY Sudhir Krishnaswamy, Professor of Law, WB National University of Juridical Sciences, Kolkata 52 ACROSS THE BORDER Osama Siddique, Associate Professor, Department of Law and Policy, Lahore University of Management Sciences (LUMS) 56 SELECTIVE BORROWINGS Maryam Khan, Assistant Professor, Department of Law and Policy, Lahore University of Management Sciences (LUMS); and Ruebhausen Yale South Asia Fellow, Yale Law School 61 THE JUDICIARY AS A RESOURCE FOR INDIAN DEMOCRACY Upendra Baxi, Emeritus Professor of Law, University of Warwick, Coventry; and Emeritus Professor of Law, University of Delhi 68 AFSPA: LEGACY OF COLONIAL CONSTITUTIONALISM Sanjib Baruah, Professor of Political Studies, Bard College, New York 73 WHITHER OUR SOVEREIGNTY? Teesta Setalvad, lawyer; co-Editor, ‘Communalism Combat’, Mumbai 79 THE COBWEBS OF IMPERIAL RULE Arudra Burra, PhD candidate, Department of Philosophy, Princeton University; Post-Doctoral Fellow, UCLA 84 A CONSTITUTION AMID DIRE STRAITS Usha Ramanathan, independent law researcher, Delhi 89 THE WAY FORWARD Fali S. Nariman, Senior Advocate; President, Bar Association of India, Delhi 94 COMMENT Received from Granville Austin, Historian of Modern India, Washington DC; Vikram Raghavan, Senior Counsel, Legal Vice Presidency, The World Bank, Washington DC; Siddiq Wahid, Vice Chancellor, Islamic University of Science and Technology, Awantipora 104 BOOKS 11 Reviewed by Madhav Khosla 106 IN MEMORIAM Arjun Sengupta (1937-2010) 108 BACKPAGE COVER Designed by www.seshdesign.com The problem SIXTY years of constitutional democracy and the and Jammu and Kashmir, a state of exception to the rule of law in India would seem, on the face of it, like rule of law, designated by the extraordinary dispensa- an occasion for taking stock and for celebrating tion, the Armed Forces Special Powers Act (AFSPA), the great Indian political experiment. The founding suspends the constitutional regime in any case, so that fathers and mothers put a structure in place, enshrined citizens may not even have the expectation, if only to a nation’s dreams in an impressively liberal text, and be disappointed, that their rights will be protected. six decades later, it appears we still abide by that It could be argued that the Constitution, as the vision. All around us, there are polities in various textual blueprint of the republic, is not responsible kinds of malfunction – Pakistan, Afghanistan, Bangla- for its own marginalization, violation, or suspension. desh, Nepal, Sri Lanka, Myanmar – and to our north, a That it was conceived in a certain era, written in a cer- prosperous but authoritarian China. India’s Constitu- tain spirit, and promulgated in good faith by the best tion makes the country an oasis of rights, representa- political and legal minds active in India around the tion and justice in a desert of flailing, failing or time of independence. That a document first articulated otherwise flawed states. and steered by the likes of B.R. Ambedkar, Sardar Patel, If only. ‘Between the idea/And the reality…/Falls Jawaharlal Nehru, Maulana Azad, Rajendra Prasad, the shadow,’ wrote T.S. Eliot in his great poem, ‘The K.M. Munshi and Constitutional Advisor B.K. Rau, Hollow Men’. So much of India is in such deep crisis continuously guarded and carefully interpreted by that the promise of the Constitution, our proudest three generations of lawmakers since, is as good as it possession, our charter and our pillar, is beginning to gets for an overly large, unremittingly poor, vexingly seem utterly hollow. For millions of Indian citizens, diverse and precariously free post-colony like India. the mere existence of the Constitution does not allevi- That we may criticize the Constitution; we may lament ate poverty, dispense justice, provide security, guar- its disrespect or point out its inefficacy in many antee rights or compensate for long-standing inequity. parts of India, but without it, we would still be colo- Tribals, religious minorities, Dalits, women, and the nized, if not by the British then by undemocratic, mili- poorest of the poor, oftentimes overlapping categories, tarist, communal or other sorts of nonprogressive suffer so acutely that they may as well be living in a strains within the Indian political spectrum. rudderless state, where no organ – electoral, legal, Better to have an excellent constitution in the legislative, administrative or military – looks out letter if not in practice, than no constitution at all, the for their welfare. In the border states of the Northeast objector says, and we should be grateful for the moral commitment and practical foresight of our founders. * Thanks to Ramachandra Guha, Dilip Simeon and Sanjib Baruah They took three years to draft the text and tried to for detailed comments on earlier drafts of this essay. D.R. Nagaraj’s correct for every problem that they could think of. classic The Flaming Feet has just been reissued from Permanent They overcame tremendous disagreements to achieve 12 Black (2010), together with his previously unpublished writings consensus. Without that inaugural effort and invest- and a critical introduction by Ashis Nandy, edited by Prithvi Datta Chandra Shobhi. The complete text of the Indian Constitution is ment we would be nowhere today, as a nation or even accessible at: http://indiacode.nic.in/coiweb/welcome.html as an idea.

SEMINAR 615 – November 2010 There is some merit to these objections. The place, to its American, French, Canadian and Irish Constitution provides a stable point of reference, so predecessors, to the legacy of English parliamentary that we are able to describe egregious attempts to democracy, to Anglo-Indian law, and to British juris- hijack state power, undermine democracy, disturb the prudence. Indian liberals and modernists are quick to peace and deprive citizens of their rights as ‘unconsti- emphasize this genealogy of the Constitution. But this tutional’. We may also amend the constitution to make document did not come into being in an epistemologi- it more responsive to present-day needs and to unan- cal vacuum, as it were – and it hardly arrived in the mail, ticipated developments in the polity, economy or from overseas. society. The Indian Constitution has been amended a Rather, it was born into a culture with a long and hundred times, a factor that arguably contributes to its complex history of legal and legislative discourse, one survival. If there were no constitution, or if it did not or more textual traditions dealing with the law, and look anything like it does, we would not be in a posi- protocols of argumentation, exegesis and interpreta- tion to criticize, condemn or resist some of the gravest tion that are among the most ancient, the most rigor- challenges the republic has faced thus far: the Emer- ous, the most exacting and the most continuous in any gency, Ayodhya, the over-extension of the AFSPA in part of the literate world. Many of the members of the Kashmir, to name just a few of many. nationalist movement, of the Constituent Assembly The Constitution is an orienting mechanism, a and of the first legislature were formally trained as law- talisman, a symbol, an everunrealizable ideal and a yers in England, but also conversant with Indic legal permanent mirror held up to our nation. Governments and political traditions, and with ideas of ethical may come and go, wars and insurrections may disrupt sovereignty, righteous rule, and normative justice normal life, ideologies may wax and wane, the derived from Brahmin and Islamic codes of pre- economy may ebb and flow. But in principle it’s always colonial provenance. possible for India, as a nation with a democratic, plu- To this mixed inheritance of the founders of the ralistic, flexible and durable Constitution, to perform republic – modern and traditional, Western and Indic, a reality-check and pull itself up by the bootstraps. Sur- Christian, Hindu and Muslim, imported and indi- vivors of the Holocaust like Hannah Arendt and Primo genous – should be added the lessons of the preceding Levi used to say the worst thing about the Nazi regime thirty years of Gandhian politics. Gandhi’s harnessing was that anything was possible in that world without and shepherding of disparate anti-colonial, radical and the law. The Constitution preserves the aspiration that nationalist energies was successful in ousting the in India at least, it is not the case that anything might British Raj and establishing Indian sovereignty, but the be possible; that beyond a point, you cannot desecrate Mahatma himself never thought in terms of translat- the rule of law and keep on getting away with it. The ing swaraj into a Constitution. His assassination in buck stops somewhere, even if only at a vanishing early 1948 forever ended the possibility of any even- point, infinitely far from the here-and-now. tual compromise he might have made with the idea of 13 The Constitution of India, as an intellectual a constitution. Others tried to theorize a so-called artefact, owed its inspiration and its form, in the first ‘Gandhian Constitution’, incorporating some ideas

SEMINAR 615 – November 2010 about village-level democracy and panchayati raj, political independence for India does not entail or guar- without much uptake from the Constituent Assembly antee Indians becoming a ‘nation’ in the true sense of as a whole. that term. These notes of scepticism and criticism Ambedkar’s closing address to the Constituent at the very dawn of the republic are jarring, but also Assembly at its penultimate session in November 1949 indicative of how genuine Ambedkar’s engagement explicitly asks that ‘the bloody methods of revolution’ was with the problem of constructing a new political – in which he includes, somewhat incoherently, ‘civil paradigm for India. He wasn’t going to pretend that disobedience, non-cooperation and satyagraha’ – be simply writing a constitution was an answer to India’s left behind in favour of ‘constitutional methods of long history of entrenched inequality and persistent achieving our social and economic objectives.’ The injustice: and in this respect, we can do no better than Chairman of the Drafting Committee went on to say: follow in his footsteps today, on a significant anniver- ‘These methods are nothing but the Grammar of sary of the Constitution. Anarchy and the sooner they are abandoned, the bet- Of course, it should also be immediately appar- ter for us.’1 In other words, he was closing the chapter ent that to an extent Ambedkar’s rejection of what he on Gandhian struggle. In the same speech he chastises calls ‘the Grammar of Anarchy’ is premised on a mis- Socialist and Communist critics of the Indian Consti- reading or misrepresentation of the Gandhian revolu- tution, invokes the American Thomas Jefferson and the tion, because it completely elides and ignores its core British John Stuart Mill, and reminds his colleagues value: non-violence. But then again, perhaps this is of democratic tendencies in the long-ago Buddhist understandable, given the fundamental differences republics of the subcontinent. between Gandhi and Ambedkar on a number of issues, The struggle over the genealogy of political including caste, religion and passive resistance – dif- thought in India is apparent even at the very moment ferences that were never reconciled to the very end of that the Constitution is completed and presented to the either man’s life, and have not been reconciled by their nation. Hardly two years after independence and soon respective followers to date. after Gandhi’s death, Ambedkar is making it clear how The late D.R. Nagaraj showed us in his brief but he wants to locate the Constitution in a longer history important career as a social theorist interested most of of state-building in India: a position that by no means all in inequality and emancipation, that the disagree- goes uncontested by his colleagues both within and ment between Gandhi and Ambedkar on caste was no outside the Constituent Assembly. Tellingly, within minor quibble. Caste goes to the very heart of the peo- another few months, Ambedkar had already resigned ple, the nation, the state and the Constitution of India. his position as Law Minister in Nehru’s cabinet. We could say that the Constitution was the most com- Historians of decolonizing and post-colonial prehensive attempt ever made to undo caste society and India, and of the republic’s foundation and subsequent rebuild India on the basis of equal citizenship, funda- fortunes, from Granville Austin to Ramachandra Guha, mental rights, and compensatory social justice. have pointed out the different strands in the Constitu- Six decades later, the goal of an egalitarian and tion’s DNA: the Government of India Act of 1935, just society still being elusive, this continues to be one which provides an element of ‘colonial continuity’; the of the Constitution’s main raisons d’être. While the examples and models of other constitutions belonging Constitution seeks to create a flat community of citi- to modern democratic republics older than India; zens in place of an intricate hierarchy of caste-based Gandhian swaraj, a dormant gene or a road not taken; groups, the historical complexity, the political poten- a ‘national revolution’, whence the imperative of tial, the religious meanings and the social practices democracy, and a ‘social revolution’, whence the associated with caste identities have in large measure impetus for equality. remained intractable to the legal and administrative Yet Ambedkar is right to caution his fellow- measures envisaged by the founders, principally founders that while liberty, recently achieved, is to be Ambedkar. The alignment between the social tele- celebrated, neither equality nor fraternity have deep ology of the Constitution and Indian social reality has roots in Indian society. He even goes on to make a fine gone progressively awry. distinction between the idea of India being based on a Caste, after an initial recession in the Nehru 14 ‘people’ versus a ‘nation’, and points out that mere years, has enjoyed a new lease of life in post-Mandal, globalizing India. Questions around caste-based 1. Constituent Assembly, Friday, 25 November 1949. political activity, electoral democracy, reservations in

SEMINAR 615 – November 2010 education and employment, and most recently around the judiciary, the legislature and the armed forces. The the idea of a caste census, continue to be central to sun of the Constitution ought to shine in every dark Indian politics and legislation. If the Constitution, and corner of India. Simply put, those who are left out for especially Ambedkar among those responsible for its long, want out for good – rightly, if regrettably, so. drafting, anticipated a withering away of caste identi- Tracts of India directly affected by Maoist insur- ties as the republic evolved, this has not occurred – gencies, inhabited by autochthonous populations, rich quite the opposite. in mineral resources and potentially the most attrac- Besides caste, another area of public life in which tive to capitalist corporations, are also, increasingly, the Constitution is at the very centre of attention, is at zones of constitutional crisis. Again, logic very simi- the margins of the Indian Union, i.e., in the eight states lar to the inflamed borderlands can be seen unfolding where the AFSPA is in effect, either because it was before our very eyes in the tribal heartlands: people imposed sometime in the past and never removed, or don’t want a constitution that fails to protect their because it is seen to be actively needed in an ongoing interests or guarantee their basic rights, livelihood and way. Arguably, if the government is inclined to suspend security – not because it is hostile to them in and of the rule of law and enforce what is effectively martial itself, but because it is unavailable to them on account law, then it can hardly worry that the Constitution is of some or other type of emergency.2 not sufficiently respected in these parts of the coun- The mere holding of elections from time to time try. Rationally, the state cannot both suspend consti- has not contained unrest nor reconciled disaffected tutional rights and at the same time demand the populations to state power, in many parts of the North- citizens’ allegiance to the Constitution of India. east, in J&K, and in Naxalite areas. State and non-state But this is precisely the situation in the North- actors complain that separatist and insurgent leaders, east and in Jammu and Kashmir these days, particu- whether Kashmiris or Nagas or Maoists, don’t want larly in the latter. Except for the provision of periodic to come to the table for talks; refuse to contest elec- elections, the Constitution is not available to the peo- tions and form elected governments; insist on using ple of these regions as their bulwark and their appeal armed methods to spread their ideology and make their against state excesses, especially military brutality. demands; counter policy with violence; invite deadly When these very people, beleaguered and cast into a counter-insurgency operations upon themselves and state of exception, disavow their faith in the Constitu- hapless civilians and, in general, do not uphold cons- tion, they are characterized as antinational and seces- titutional norms of negotiation. Indeed. sionist. When they then go on to really demand Rebels against the idea of India have picked separation from the Union, we wonder why they do not up the gun at every point since the very inception of feel love and loyalty towards our splendidly liberal and the republic. But it has been the state’s prerogative to democratic Constitution. either follow suit and abandon the constitutional path, This cycle of exception and alienation has gone or hew close to the Constitution’s liberal vision and on for over 50 years in the Northeast and over 20 years attempt to bring in estranged sections through a com- in Kashmir. The breaking point may well be upon us, bination of persuasion and incentives. By enforcing as far as Kashmir goes. The message is clear: a consti- extraordinary laws, by sending in armed forces, by tution in suspension is a recipe for rebellion, secession granting impunity to soldiers and paramilitaries for and the implosion of the Union so painstakingly and their actions against armed or unarmed civilians, by so tenuously constructed in the early years of the denying citizens redress, justice or compensation, by republic, by use of a combination of methods, fair and creating a war-like situation for a population that has not-so-fair. The Indian state must rethink the purpose, political, social, cultural and economic grievances pos- the efficacy and the implementation of the AFSPA, as sible to address without force, it is the state that sets well as a host of other extraordinary laws that under- aside the Constitution. The Indian state has done this mine, weaken and can ultimately destroy the writ of too many times, in too many places, and for too long. the Constitution or worse, engender in the public opi- It is time for citizens in the so-called ‘normal’ nion a terminal aversion against it. parts of the country to consider how they want to A priori, every single part of this country deserves defend their Constitution against such misuse and ill- to be governed by the representatives of the people, duly 15 2. If anything, the 5th Schedule of the Constitution specifically elected and installed in office, and authorized to admin- addresses Scheduled Tribes and Scheduled Areas, but are ruling ister the full panoply of institutions of the executive, parties implementing it in the states affected by Maoism?

SEMINAR 615 – November 2010 treatment by the state, a procedure that leaves millions and no matter how difficult the conditions for nego- of people exposed to both everyday as well as exces- tiation and dialogue with enemies of the state. The sive violence, and ultimately turns them against India. Constitution is what can make the difference between If the Indian Union sees any attrition to its territory in India and centrifugal anarchy (Pakistan), India and the coming years on account of separatism and civil soulless growth (China), India and exclusivist notions strife (not such an unlikely scenario as hawkish policy- of citizenship (Israel), India and unchecked consum- makers like to believe), this will have come to pass erism (the US), India and any form of power that might at least partly because the state allowed the cancer of be unethical and inimical to human flourishing. exception to eat away at the body politic, and did not The Constitution of the Republic of India, in a administer the medicine of constitutional reinstate- country that has produced more texts in more languages ment and restitution in time. It bears repeating that for more centuries than any other nation in the world, periodic exercises in the electoral process do not is a singular text. It is comparable to no other text: always prove to be a sufficient counterweight to the not the Bhagavad Gita or the Qur’an, not the Holy toxic effects of the AFSPA, even if elections are rela- Bible or the Guru Granth Sahib, not the Ramayana tively free and fair (a tough challenge), and even if sig- or the Mahabharata, not Manu’s Dharmashastra nificant percentages of the relevant populations do turn or Kautilya’s Arthashastra, not the edicts of Ashoka out to vote. or the diaries of Babur, not the inscriptions of The state’s reasoning for why military, paramili- Samudragupta or the poems of Bahadur Shah Zafar, tary and police must replace civil agencies in the work not Gandhi’s Hind Swaraj or Nehru’s Discovery of of everyday governance, a step which can and does go India, not Tagore’s national anthem or Ambedkar’s horribly wrong, is that disruptive violence (from The Buddha and His Dhamma. It is completely unique secessionist and insurgent groups) has to be met with and unprecedented in the history of India, crowded as restorative counter-violence (from the state) in order that history is with innumerable texts. to ensure overall security for the population, and pre- For those who ask, ‘What can a mere text do?’ serve the integrity of the Union of India. Defenders of we need only turn to places where this text has been the AFSPA insist that this is a sound rationale. But suspended, neglected, ignored or transgressed, and we inevitably, questions arise: What are the limits of the find injustices and atrocities of every kind rampant. immunity that such an extraordinary law grants to the A text like the Constitution can do exactly what such a armed forces, when does the justifiable control of ter- text is supposed to do: nothing more, and nothing less, ror become overkill, and when should a quantitative than upholding the world. After 250 years of colonial assessment about the necessary degree of force give rule, nearly a century of imperialism, incessant soul- way to a qualitative judgment about whether force is searching, and the most profound political and intel- necessary at all, over and above alternative – peaceful lectual effort undertaken by hundreds of thousands – means of addressing the situation? of individuals across the length and breadth of the There appears to be a dire need for a system of subcontinent, India finally became an independent checks-and-balances, perhaps also originating from nation-state on 15 August 1947. After three years of the Constitution, to be instituted, so that the explicitly Constituent Assembly debates, on 26 January 1950 democratic mandate of the Indian republic may be India gifted itself the chance to unlock its society and strengthened against an always lurking authoritarian set itself free. tendency (a legacy of the post-colonial state’s colo- Given a very old and civilized culture, the Indian nialist and imperialist predecessor). nation, protected by its founding ideals, served by It may be true that extremist and terrorist organi- resilient institutions, and fired by new economic oppor- zations have as little regard for civilian life and safety tunities, ought to be able to find a way to allow its peo- as do trigger-happy paramilitaries, and that both sides ple to live with dignity, in peace, and with the means violate human rights and abuse their armed power. But and the prospects to better their lot. If 60 years after because the state is by definition the stronger party, the founding of the republic millions of citizens still and the one authorized to govern, the responsibility of remain deprived of their liberty, then somewhere along exercising restraint, minimizing collateral damage, and the way India has forgotten that the key to its emanci- 16 setting an example of honourable conduct lies first and pation lies in its own priceless, peerless Constitution. foremost with the state. This is a responsibility that it cannot ever relinquish, no matter what the provocation, A N A N Y A V A J P E Y I

SEMINAR 615 – November 2010 What is constitutional morality? P R A T A P B H A N U M E H T A

THE phrase ‘constitutional morality’ The diffusion of ‘constitutional has, of late, begun to be widely used. morality’, not merely among the Yet the phrase rarely crops up in majority of any community, but discussions around the Constituent throughout the whole is the indis- Assembly. Of the three or four scattered pensable condition of a govern- uses of the phrase, only one reference ment at once free and peaceable; has any intellectual significance. This since even any powerful and obsti- is, of course, Ambedkar’s famous nate minority may render the work- invocation of the phrase in his speech 1. For easy access to the two Ambedkar ‘The Draft Constitution’, delivered on speeches referred to in this text, see the selec- 4 November 1948. In the context of tion, The Constitution and the Constituent defending the decision to include the Assembly Debates. Lok Sabha Secretariat, structure of the administration in the Delhi, 1990, pp. 107-131 and pp. 171-183. Constitution, he quotes at great length The quotation from Grote that Ambedkar uses 17 can be found in a reissue of George Grote, the classicist, George Grote. The quo- A History of Greece. Routledge, London, tation is worth reproducing in full: 2000, p. 93.

SEMINAR 615 – November 2010 ing of a free institution impractica- more important for Ambedkar’s pur- For him, the real anxiety was not ble, without being strong enough to poses. Ambedkar was making a series ‘Constitution’ the noun, as much as conquer ascendance for them- of historical claims about constitu- the adverbial practice it entailed. selves.1 tionalism. Like Grote, he had little For Grote, the central elements What did Grote mean by ‘cons- doubt that constitutional morality was of constitutional morality were free- titutional morality’? Ambedkar quotes rare. It was not a ‘natural sentiment’. dom and self-restraint. Self-restraint Grote again: The purpose of Grote’s History of was a precondition for maintain- By constitutional morality, Grote Greece had been, in part, to rescue ing freedom under properly constitu- meant… a paramount reverence Athenian democracy from the conde- tional government. The most political for the forms of the constitution, scension of its elitist critics like Plato expression of a lack of self-restraint enforcing obedience to authority and Thucydides, and argue that Athe- was revolution. Indeed constitutional and acting under and within these nian democracy had, even if briefly, morality was successful only in so far forms, yet combined with the habit achieved elements of a genuine cons- as it warded off revolution. Ambedkar of open speech, of action subject titutional morality. also takes on the explicitly anti-revo- only to definite legal control, and For Grote, there were only two lutionary tones of constitutionalism. unrestrained censure of those very other plausible instances of a constitu- In a strikingly odd passage, he says authorities as to all their public acts tional morality having been remotely that the maintenance of democracy combined, too with a perfect con- realized: the aristocratic combination requires that we must ‘hold fast to fidence in the bosom of every citi- of liberty and self-restraint experi- constitutional methods of achieving zen amidst the bitterness of party enced in 1688 in England, and Ame- our social and economic objectives. contest that the forms of constitu- rican constitutionalism. All other It must mean that we abandon the tion will not be less sacred in the attempts at enshrining a constitutional bloody methods of revolution. It means eyes of his opponents than his own. morality had grievously foundered. we must abandon the method of civil For Ambedkar, this note of historical disobedience, non-cooperation and caution simply added to his worries satyagraha.’3 In Grote’s rendition, ‘constitutional about India. Democracy in India morality’ had a meaning different was only, as he put it, ‘top dressing on from two meanings commonly attri- Indian soil, which is essentially In one stroke, both violent revolution buted to the phrase. In contemporary undemocratic.’2 Our people have ‘yet and passive resistance are equated as usage, constitutional morality has to learn’ constitutional morality. exemplifying a kind of excess and lack come to refer to the substantive con- of self-restraint incompatible with tent of a constitution. To be governed constitutional morality. The tacit equi- by a constitutional morality is, on this What are the elements of constitu- valence he posits between satyagraha view, to be governed by the substan- tional morality that Ambedkar is so and violence has roots in Ambedkar’s tive moral entailment any constitution concerned about? His invocation of experience of satyagraha as a form of carries. For instance, the principle of Grote is meant not as a reference coercion. It is a feature of constitu- non-discrimination is often taken to merely to historical rarity, but also as tional morality that while government be an element of our modern consti- a pointer to the distinctiveness of is subject to the full force of criticism, tutional morality. In this sense, consti- constitutionalism as a mode of asso- this criticism must, in some sense, be tutional morality is the morality of a ciation. In both the 4 November 1948 ‘pacific’ criticism. constitution. speech and the final ‘Reply to the Ambedkar dismisses an entire There was a second usage that Debate’ on 25 November 1949, repertoire of political action used dur- Ambedkar was more familiar with Ambedkar – amidst discussions of a ing the nationalist movement as being from its 19th century provenance. whole range of substantive issues such incompatible with the demands of In this view, constitutional morality as federalism, rights, decentralization, constitutional morality, as he under- refers to the conventions and pro- and parliamentary government – stood it. These forms of political tocols that govern decision-making returns to elements of constitutional action continue to be seen by many as where the constitution vests discre- morality prefigured in his use of Grote. essential to democracy, though it is 18 tionary power or is silent. doubtful that Ambedkar would have 2. Ambedkar, ‘Speech Delivered on 25 But Grote’s use of the term was November 1949’ in The Constitution and different from these two uses, and Constituent Assembly Debates, p. 174. 3. Ibid., p. 174.

SEMINAR 615 – November 2010 admitted them within the ambit of the constitution, even though equality authoritatively that it embodies popu- constitutional morality. But there is is of paramount concern to him. What lar sovereignty and can speak in its perhaps a deeper element at play in the parties have to agree to, as Ambed- name. He is often suspicious of his ruling out satyagraha as incompa- kar recognizes over and over, is an the legislature’s claim to do so (for tible with the basics of constitutional allegiance to a constitutional form, not instance, in his argument for why the morality. And this in part springs from an allegiance to a particular substance. form of administration should not his understanding of the distinctive- Therefore, constitutional mora- be entrusted to the legislature). His ness of constitutional morality. lity requires that allegiance to the defence of a relatively easy process For the second element of cons- constitution is non-transactional. The of amending the constitution rests titutional morality is the recognition essence of constitutional morality is on a halfway compromise between, of plurality in its deepest form. What that allegiance to the constitution on the one hand, a radical Jeffer- is surprising is that Ambedkar turns cannot be premised upon it leading to sonianism that would subject the out to be as, if not more, committed to outcomes that are a mirror image of constitution to renegotiation at a form of non-violence as Gandhi. For any agent’s beliefs. A constitutional every generation and, on the other, a him, respecting constitutional forms morality requires putting up with the rigid constitution that would deeply is the only way in which a genuinely possibility that what eventually entrench the present generation’s non-violent mode of political action emerges from a process is very differ- preferences. can come into being. For the central ent from what citizens had envisaged. challenge in a political society is the management and adjudication of In short, any appeal to popular sove- differences – though what Ambedkar The third element of constitutional reignty has to be tempered by a sense had in mind were more differences of morality is its suspicion of any claims that the future may have at least as opinion than of identity. to singularly and uniquely represent valid claims as the present. Indeed, it The only way of non-violent the will of the people. This is most has to be said of the Constituent resolution amidst this fact of differ- deeply manifest in Ambedkar’s hos- Assembly as a whole, that there is ence is securing some degree of una- tility to any personification of politi- very little demagoguery in the name nimity on a constitutional process, a cal authority. In part what rendered of popular sovereignty. Almost never form of adjudication that can mediate satyagraha ominous, from a constitu- is a claim advanced or defended on the difference. Unilaterally declaring tional point of view, was not just its ground that it somehow represents oneself to be in possession of the truth, uncompromising character; it was the will of the people. Often the dis- setting oneself up as a judge in one’s also the fact that its agents saw them- course is more centred on the respon- own cause, or acting on the dictates of selves as personifying the good of the sibility to the people. This is not one’s conscience might be heroic acts whole. Ambedkar is hugely suspi- simply because the Constituent of personal integrity. But they do not cious of any form of hero worship – Assembly was not elected by univer- address the central problem that a con- now a rather ironic fear in an age in sal suffrage; nor was it simply a pro- stitutional form is trying to address, which Ambedkar himself has been duct of elitism trying to keep popular namely the existence of a plurality of deified. But this suspicion of personi- sovereignty at bay. It was rather agents, each with his/her own convic- fication was part of a larger sensibi- because there was a deeper grasp of a tions, opinions and claims. lity that formed a crucial element of political truth: any claims to speak his constitutional morality: he was on behalf of popular sovereignty are suspicious of any claims to embody attempts to usurp its authority. No Constitutional morality requires popular sovereignty. This may be a claim to represent popular sover- submitting these to the adjudicative somewhat surprising claim to attri- eignty therefore, should ever be con- contrivances that are central to any bute to Ambedkar, and with him other sidered fully convincing; the chief constitution – parliament, courts and architects of the Constitution. But the purpose of constitutional government so on. In the face of difference, the evidence of this is unmistakable. is to challenge governmental, or any only point of unanimity that one can Thus Ambedkar is very reluc- other claims to represent the people. seek is over an appropriately designed tant to see any branch of government, One piece of evidence for this is adjudicative process. This is one rea- whether it be the legislature or Ambedkar’s defence of the parlia- 19 son, for example, why Ambedkar does the courts, or even the Constituent mentary form of government because not think socialism should be part of Assembly itself, as being able to claim it embodies what he calls the princi-

SEMINAR 615 – November 2010 ple of ‘responsibility’. By this he was a threat to freedom and individu- abstract personae bound together by means that the executive will be ality. Once popular sovereignty or the abstract rules. It is precisely this subject to ‘daily assessment’. While authority of the people had been abstraction, this distance from specific elections will give an opportunity for invoked, who else would have any persons and wished for substantive the people to engage in what he calls authority to speak? Grote defused this outcomes that allowed a constitu- ‘periodic assessment’, the arsenal of anxiety in a novel way. Allegiance to tional culture to emerge. Ambedkar parliamentary democracy will facili- forms of constitution was not to be was a powerful and trenchant critic of tate daily assessment in the form of confused with deference to popular caste. In this context, caste was an resolutions to no confidence motions, sovereignty. The claim by a govern- impediment to constitutional moral- debates to adjournment motions, etc. ment that it represented popular sove- ity in a very specific way. It is the form Whether or not he was right about a reignty did not, by itself, have any of social existence that prevented the parliamentary system of government authority. Its claims and decisions emergence of those abstract personae is debatable, but it is deeply interest- could still be interrogated, censured so central to constitutional morality. ing that he sees parliament’s function and subject to unrestrained criticism. It is the one particularity that con- as questioning any claims the govern- Indeed, what Athenian constitutional stantly undermines the formation of ment might make to embody popular practice had achieved was precisely the self, central to constitutional opinion or sovereignty simply on this: the space for unrestrained criti- morality. For constitutional morality account of its majority. cism that was nevertheless ‘pacific requires various forms of dissocia- and bloodless’ and not silenced by tion: the ability to dissociate a person claiming the authority of the people. from their views; the ability to trust The function of parliament is not someone despite deep disagreement so much to represent popular sover- based on the knowledge that there eignty as it is to debate and constantly This account of constitutional moral- is a shared agreement on processes to question government. But, paradoxi- ity may seem to emphasize the formal adjudicate that disagreement. Caste cally, this is to prevent government elements: self-restraint, respect for identity, by its very character, made from claiming monopoly over popu- plurality, deference to processes, such dissociation impossible. lar will. There is not a single place in scepticism about authoritative claims the debates where the protagonists to popular sovereignty, and the con- raise the following questions: What cern for an open culture of criticism For Ambedkar, without fraternity, form of democracy will best represent that remains at the core of constitu- ‘equality and liberty would be no the will of the people? The predomi- tional forms. These may seem rather deeper than coats of paint.’4 Nowhere nant focus is on multiplying rather commonplace, but Ambedkar had does Ambedkar make the argument than on questioning claims to repre- little doubt that the subjectivity that that the Constitution is about distribu- sent the people. Although someone embodied these elements was rare tion of power among different castes. like Nehru was occasionally impatient and difficult to achieve. Ambedkar Caste embodies a principle of social with institutions like the court, the grasped singularly the core of the separation, and is, to use his phrase, subsequent contest between the judi- constitutional revolution: it was an ‘anti-national’.5 Its very existence ciary and legislature can be seen as association sustained not by a com- precludes an ability to abstract from yet another exemplification of the monality of ends, or unanimity over one’s identity. It ensures that the rela- Constitution’s impulse that there substantive objectives (except at per- tionship between groups is perpetu- should be no singularly authoritative haps a very high level of generality). ally competitive. A constitutional arbiter of either popular will, or cons- It was rather a form of political organi- morality, by contrast, requires both titutional interpretation. zation sustained by certain ways of these features – abstraction and agree- It is a concern for criticism doing things. It was sustained not ment or cooperation. It requires the rather than representation of popular so much by objectives as by the con- presumption that we are equal. How- will that ties Ambedkar most closely ditions through which they were ever, that equality is possible only to Grote’s invocation of constitutional realized. This was the core of consti- when for constitutional purposes our morality. After all, the burden of tutional morality. caste identities do not matter. A cons- 20 Grote’s great history of Athenian A constitution thus was not a democracy was to defuse the criticism relationship between concrete per- 4. Ibid., p. 181. of Athens that popular sovereignty sons, but rather a relationship between 5. Ibid., p. 181.

SEMINAR 615 – November 2010 titutional morality requires the sense rights of the billion-dollar home owner has been ill-served by our historical that despite all differences we are part and a commitment to redistribution? imagination. In a very mundane sense, of a common deliberative enterprise. In almost all his speeches, Ambedkar with a handful of exceptions, there himself wrestles with this tension: is no serious or deep historiography Can a constitution survive without a associated with our Constitution, one But there are still several good rea- singular conception of distributive that can put it in proper historical and sons to unpack the references to con- justice underlying it? philosophical perspective. stitutional morality. First, we simply In the final analysis, he pitches need to complicate our understanding for constitutional morality, an alle- of how our framers understood the giance to constitutional forms, rather The promulgation of India’s Cons- Constitution. Formalism of a certain than collapsing the domains of consti- titution was made possible by a kind was central to their imagination tutional and distributive justice. He sensibility that few contemporary his- of the Constitution as a mode of asso- doesn’t cheat by giving us the (false) torians can recover. While the Consti- ciation. Second, it is a striking fact that assurance that the forms of constitu- tution was an extraordinary work of while Ambedkar recognized the con- tional morality will produce deep sub- synthesis, our historical imagination tradictions between the actual injus- stantive equality; nor does he cheat is given to divisiveness. There is no tice and constitutional aspirations, he by saying that substantive equality more striking example of this than the did not collapse the Constitution simply is the same thing as constitu- way in which members of the Cons- into a doctrine of distributive justice. tional morality. No society has yet tituent Assembly have been divided Implicit in his invocation of the con- adequately negotiated the tension bet- up and appropriated, rather than seen tradiction is a dual-track conception ween the domain of constitutional in relation to each other. Ambedkar, of justice. There is constitutional jus- morality and the domain of substan- Patel, Nehru, Prasad and a host of tice, defined by certain rights and pro- tive justice. He wanted a revolution, others are now icons in partisan ideo- cedures. There is also substantive but never became a revolutionary. logical battles, as if to describe Ambed- justice, embodied in debates over kar as a Dalit, or Patel as proto-BJP, private property and the rival claims or Nehru as a Congressman exhausts of socialism versus capitalism. The final reason for focusing on all that needs to be said about them. In a way the constitutional constitutional morality is historical. The greatness of each one of discourse is caught between two What was the nature of the Constitu- them consists not just in the distinc- impulses. On the one hand it wants to ent Assembly’s achievement? It is tive points of view they brought say that we can rise above these par- fair to say that it became a supreme together, but their extraordinary abil- ticular disagreements and provide a exemplar of what Ambedkar defined ity to work together despite so many framework where both parties can as constitutional morality. This is a differences. Congress itself facilitated contend; the rights of those who build sensibility that few analysts of the the entry of so many people with an billion dollar homes can contend with Constitution can recover. They are anti-Congress past into key roles in the the claims of those who demand more often fixated on transactional views Assembly. It takes a willful historical radical forms of redistribution. Our of the Constitution, measuring it by a amnesia to forget the fact that the men Constitution has space for both social- yardstick of justice external to its pur- and women of the Assembly worked ists and capitalists or, to take another poses. Perhaps the frame of constitu- with an extraordinary consciousness example, those who radically dis- tional morality can direct our attention that they needed and completed each agree over reservation. Constitutional to a crucial question: What kind of a other. The historiography of the Cons- morality is simply the conditions one political sensibility was required to tituent Assembly has not regarded subscribes to in determining the out- make a constitution possible? it as an exemplar of constitutional come, whatever that might be. Constitutions not only allocate morality. It has rather assessed it on a On the other hand, we might feel authority, define the limits of power much more ideological yardstick. that there is something unstable about or enunciate values. They also consti- The ability to work with differ- the political psychology associated tute our sense of history and shape a ence was augmented by another qual- with this dissociation of constitutional sense of self. They often mark a new ity that is rarer still: the ability to from distributive justice. Can citizens beginning and define future horizons. acknowledge true value. This may be 21 really be committed to a framework Despite the centrality of the Constitu- attributed to the sheer intellectualism that allows both goals at once: the tion to our social and political life, it of so many of the members. Their col-

SEMINAR 615 – November 2010 lective philosophical depth, historical ment of a constitutional morality: knowledge, legal and forensic acumen to treat each other as citizens deserv- and sheer command over language is ing equal regard, despite serious dif- enviable. It ensured that the grounds ferences. of discussion remained intellectual. Also remarkable was their ability to acknowledge greatness in others. The fourth sensibility which we have It was this quality that allowed lost sight of is the importance of form. Nehru and Patel, despite deep differ- We are all instinctive Marxists in the ences in outlook and temperament, sense that we think of institutions, to acknowledge each other. Their forms and laws as so many contri- statesmanship was to not let their dif- vances to consolidate power. But this ferences produce a debilitating polari- was a generation with a deep sense zation, one that could have wrecked that forms and institutions are not India. They combined loyalty and merely instrumental for an immediate frankness. Even as partial a biogra- goal; they are the enabling framework pher of Nehru as S. Gopal conceded that allows a society the possibilities that what prevented the rupture was of self-renewal. Forms also allow trust their ‘mutual regard and Patel’s stoic to be built; they give a signal that decency.’6 power, even when it seeks to do good, is not being exercised in a way that is arbitrary. This is exactly why the The third sensibility so many leaders members took the Assembly and its of the Constituent Assembly carried deliberations seriously. was a creative form of self-doubt. The fifth feature of their sensi- They were all far more self-conscious bility is a sense of judgment. This is a that they were taking decisions under very intangible political quality. Part conditions of great uncertainty. Was of it is the ability to deliberate in a way it that easy to know what the conse- that takes on board all the relevant quences of a particular position were considerations, and does not make going to be? They also understood politics hostage to a single mission. their mutual vulnerabilities. Nehru’s Another is the ability to judge one’s answer to Patel’s worry that Nehru own power and place in relation to was losing confidence in him was that others and the public at large. This he was losing confidence in himself. gives a better sense of when to com- And anyone who has read the tortured promise and when to press a point, last pages of The Discovery of India when to curb one’s ego and when to will understand how much Nehru project power. meant it. Much of the cheap conde- The Constitution was made pos- scension of posterity heaped upon sible by a constitutional morality that these figures would vanish if we could was liberal at its core. Not liberal in show as much self-awareness and a the eviscerated ideological sense, but sense of vulnerability as our founding in the deeper virtues from which it generation did. Many of them made sprang: an ability to combine indi- mistakes of judgment. But one has the viduality with mutual regard, intellec- confidence that they were more likely tualism with a democratic sensibility, to acknowledge their mistakes than conviction with a sense of fallibility, most of those who comment upon deliberation with decision, ambition 22 them. They embodied the central ele- with a commitment to institutions, and 6. S. Gopal, Nehru. Vol II. Harvard University hope for a future with due regard for Press, Cambridge, p. 308. the past and present.

SEMINAR 615 – November 2010 The social question and the absolutism of politics U D A Y S . M E H T A

IN her book On Revolution, Hannah Arendt admitted that the ques- Arendt claimed ‘…every attempt to tion of slavery, the plight of the poor solve the social question by political and the treatment of Native Ameri- means leads to terror.’1 By the social cans, were all largely ignored at the question she meant issues of material constitutional founding of the United destitution and inequality. For Arendt States. Nevertheless, for her this was the calamity of the French Revolution, a judicious choice because only by on account of which it led to terror and not intermingling social issues with constitutional instability, was that it political institutions could power be professed to address questions of des- limited, autonomous and focused on titution and social inequality solely securing the condition of public free- within a political framework. In con- dom. Indeed, she even saw the refer- trast, in the American founding, by sub- ence to ‘the pursuit of happiness’ in stantially ignoring the social questions the Declaration of Independence as an of the day, the constitution was able to embryonic form of this intermingling, limit the ambit of political power, and with the potential to compromise an hence secure the domain of public free- autonomous political domain. Des- dom – which, for Arendt, was the only pite this, for Arendt the American appropriate domain of power. Constitution served as an ideal in 23 1. Hannah Arendt, On Revolution. Penguin which political power was limited, Books, London, 1990, page 112. public freedom secure, and national

SEMINAR 615 – November 2010 unity anchored in the broad structures ing the late-forties and onwards, three The three issues thus drew on of political institutions – and all this issues have an unmistakable salience. urgencies that were both historical was possible only because social First is an overriding concern with and contemporaneous. They had an questions were kept at bay. national unity; second, a deep and obvious conceptual and material But it was the French example anxious preoccupation with issues logic. But there is an irony in the that served as the much more influen- such as a poverty, illiteracy, economic emphasis that these issues assumed tial model for revolutions and consti- development, and many other similar and retain. Following independence, tutional governments in the 19th and foes; and finally, there is an intense the nation was now a project; its free- 20th centuries. Here the authorization concern with India’s standing in the dom could only be a projection into of political power was constitution- world and with foreign affairs more the future. The irony is that the suc- ally braided with issues of social generally. These three concerns also cessful culmination to free oneself uplift and French national unity was constitute the template for much of the from imperial subjection led almost grounded on the material destitution subsequent politics of the country; in immediately to freedom itself becom- of the French peasant. Citizenship was fact it seems fair to say that they char- ing a subsidiary concern – subsidiary thus from the very outset a response acterize the general contours of the to national unity, social uplift and a to a social predicament and the power politics of many newly independent concern with recognition. Freedom of the state was a promissory rejoin- countries in the second half of the 20th did not stand alone as something der to redress that predicament. century. secured through independence itself. In the Indian case each of these In a manner recalling de concerns had obvious exigent reasons Tocqueville’s distinction between Constitutions are often conceived that explain their prominence. It is Europe where people became equal, when the pressure of surrounding cir- plain that a country on the verge of and America where they were born cumstances cannot be resisted, and independence, marked by dizzying, equal, the nation, like its members, when those circumstances are liable often fractious, and potentially cen- was not free, but rather always in the to substantially determine the content trifugal diversity – not to mention a process of becoming so. As Nehru of the constitution. The irony of this diversity that had long been used to claimed in his inaugural speech on 14 is that as documents that set up, among justify imperial subjection and one August 1947, an age had come to an other things, the deliberative frame- in which the prospect and then the end and it was ‘the future [that] beck- work of a country’s political institu- reality of partition had loomed for ons us.’ In such a view, freedom is never tions, constitutions themselves are many years – would be vigilant, indeed, in the moment, because it cannot be often not the product of extended obsessed with national unity. Similarly, tangential to the national and collec- deliberation. This was not true in the under extant conditions of near ubi- tive purposes with which it is braided. Indian case where the Constituent quitous social despair, illiteracy and Assembly sat for over three years dur- many other forms of destitution, and ing which it reflected with great seri- that too unequally experienced by dif- Freedom existed as a future prospect, ousness on the future of the country. ferent groups, the concern with such as the distant culmination of a plan.2 But in many other ways the Indian matters could hardly have been any- It becomes freighted with the serious- Constitution had a mould even prior thing other than anxious and urgent. ness and responsibility of pursuing an to its actual conception in which arduous collective journey. This is the role of social inequities was evident in Nehru’s speeches from the very considerable. What has been the And finally, given the long history period shortly prior to and following legacy of the determinative fact that during which national identity had independence. In their tone and con- the Constitution, like others that were been denied, distorted and disparaged, 2. ‘For a long time we have been having adumbrated in the 20th century had and the struggle for independence various plans for a free India in our minds, but to, or at any rate did from the very out- during which it had been asserted as now, when we are beginning the actual work, set, concern itself with questions having a historical and objective war- I hope, you will be one with me when I say, that we should present a clear picture of this plan of social uplift, equality and social rant, it is only to be expected that a to ourselves, to the people of India and the identity? pressing and guiding feature of natio- world at large. The resolution that I am plac- 24 In the voluminous writings, nal idealism would have it alloyed ing before you defines our aims, describes an outline of the plan and points the way which debates and speeches that inform with the question of recognition and are going to tread.’ Jawaharlal Nehru, CAD, constitutional reflections in India dur- standing in the international arena. page 57.

SEMINAR 615 – November 2010 tent they are like a solemn dirge to the Politics becomes the ground for natio- sity and saw it as having a viability that exacting burdens that India’s inde- nal unity and the redressing of social would not necessarily (as with Hobbes) pendence imposes on her. They are issues, the central venue through assume a violent or fractious form. It unremittingly weighed by a sense of which this ground and unity are cons- did not require being displaced by the necessity and foreboding. 3 tantly reaffirmed. The point may seem distinctly political power of the state. obvious, indeed trite. One might won- He identified the social with the terms der what else other than politics could in which people conceived of their My point is that the vision that the be the ground of national unity and lives – religion, caste, location, pro- Constitution articulates is not illumi- purposefulness? But the thought fession, and so on. These were the nated by the idea of an extant domain deserves more attention precisely quotidian references by which people of public freedom, which comes into because the Constitution itself was navigated their everyday lives and being through the dispatching of doing something more novel and through which they tried (or did not imperial governors. In the context of radical. try) to live more or less ethical lives, the times it meant very little to say that with more or less self-control and the Constitution would secure a domain confidence. of freedom and limit political power Thomas Hobbes, the 17th century For Gandhi the social supplied to that end. The pithy remark by the English philosopher, reflected on this the template of the ethical and it did American Founder Patrick Henry, question in light of the social diversity not require being supplemented, ‘give me liberty, or give me death’, and sectarianism that had character- let alone being supplanted, by the which in the popular American imagi- ized England during the 16th and 17th political. This is what made Gandhi nation still captures something of the century, and which had led to the Civil a conservative, or at any rate a very informing ideal of their constitution, War. His diagnosis was that to avoid pragmatic, thinker, because with the has no correspondingly popular reso- war and such conflict, power had to be exception of untouchability, which he nance in our constitutional tradition. unitary. In a word, power, and the fervently sought to abolish, he gener- One must, therefore, ask how should authority that sanctioned it, had to be ally accepted life in the terms in which one conceive of that specific and very political. The diversity and complex- it was already given. distinctive energy that marks consti- ity that had marked the social and tutional reflection in India from the religious landscape of England had to forties onward? What are the implica- be brought to heal under the unified In contrast, the Constitution had a tions of the ‘social questions’ serving superintendence of a distinctly politi- very different and distinctly political as a caption for a broader national cal power. This was a hugely influen- vision. Here was a document which endeavour, in a way in which the tial thought; so influential that we can granted universal adult franchise in a securing of public freedom had served scarcely imagine a state of affairs prior country that was overwhelmingly illi- as the caption for American constitu- to ways in which it has moulded the terate; where the conditionality of tionalism in the 18th century?4 modern world. It was also a thought, acquiring citizenship made no refer- Unity and social uplift, I want to which the architects of our constitu- ence to race, caste, religion or creed; suggest, are the terms through which tion shared. which committed the state to being a specifically political national vision The Indian Constitution autho- secular in a land that was by any reck- gets articulated and other forms of rizes a distinctive, one might even say oning deeply religious; which eva- power and authority get eclipsed. revolutionary, type of power because cuated as a matter of law every of the way it conceptualizes national prescriptive form of hierarchy under 3. ‘…India after being dominated for a long pe- unity and its relationship with exist- conditions that were marked by a riod has emerged as a free sovereign demo- cratic independent country, and that is a fact ing forms of social order and autho- plethora of entrenched hierarchies; that changes and is changing history… That rity. Its deep concern with the social and that granted a raft of fundamen- is a tremendous responsibility. Freedom brings is part of a piece with an equally deep tal individual rights in the face of responsibility; of course, there is no such thing worry regarding the inherent and his- virtual total absence of such rights. as freedom without responsibility… There- fore, we have to be conscious of this tremen- torical diversity of the social. Gandhi In its Preamble it committed the dous burden of this responsibility which championed the social and its diver- state to the most capacious conception freedom has brought: the discipline of freedom of justice, including thereby ‘social, 25 and the organized way of working freedom.’ 4. See Judith N. Shklar, Redeeming American Jawaharlal Nehru, CAD, Book 2, volume vii, Political Thought. University of Chicago economic and political’ justice, ‘liberty page 319-20. Press, Chicago, 1998, especially chapter 11. of thought, expression, belief, faith,

SEMINAR 615 – November 2010 and worship’, equality understood to becomes subject to this necessity. her history of confederation, her include that of ‘status and opportu- It can only represent freedom as sabhas, samitis and panchayats and nity’, and in which under the heading something prospective. Its immediate the traditions of decentralized accoun- of ‘fraternity’ it professed to insure ambit is dictated by the intensity of tability. But this very diversity was ‘the dignity of the individual and the ‘mere life’. also taken to be the ground of India’s unity and integrity of the Nation.’ political backwardness, her lack of Most importantly, the Constitu- national coherence, her easy resort to tion created a federal democracy with Under such conditions power is internecine conflict and her funda- all the juridical and political instru- transformed from a traditional con- mentally anti-modern orientation. ments of federal, provincial and local cern with establishing the conditions India, as both Gandhi and Nehru self-governance where the nearest for freedom to a concern with sustain- concurred, lived in her villages and her experience had been of imperial and ing life and its necessities. The power villages in being worlds unto them- princely authority. When one consi- of the state is thus underwritten by an selves, tended to live in a benign iso- ders for example, the Directive Prin- elemental imperative to sustain life – lation from the rest of the world. For ciples of the Constitution, or the the corporeal life of the citizen and the Gandhi, village India furnished the ‘strivings’ of the state, they include unitary and corporate life of the nation. basic social integuments of life and for matters of health, education, indivi- And thus, in the face of pressing resisting the lure of a technologised dual and communal safety, equality social urgencies, the idea that there are modernity. For Nehru, as a general and prosperity. One cannot but be fundamental limits on the power of the matter, villages entrenched practices awed by the extent and reach of such state survives only through a rhetori- that were archaic, anti-rational and a vision and agenda. It has no outside cal courtesy to certain liberal pieties. sectarian in their prejudices. They to it. This constitutionally enshrined Ambedkar for one was too clear- represented everything to which his vision authorized a state that was to be headed to abide the fiction of such vision of the democratic nation and responsible for the eradication of pov- pieties. He made this clear on several state offered a redemptive redress. erty, undoing the stigmas of casteism, occasions, for example in a statement improving public health and educa- to the Constituent Assembly on 4 tion, building large industry, facilitat- November 1948, while speaking of The constitutional vision saw in the ing communication, and fostering nothing less than the matter of funda- social diversity of India a profound national unity. Not surprisingly the mental rights, he said ‘…fundamental challenge. It was variously coded as a Indian state has never had any diffi- rights are the gifts of the law. Because resistance to the professed unity of the culty justifying extending the ambit of fundamental rights are the gift of the nation and as supporting the sectarian its power. State it does not follow that the State and inegalitarian norms that sustained cannot qualify them.’5 Ambedkar was and promoted the social tapestry of voicing what every follower of Hobbes the country. But most importantly, the This concern with social issues, which has known that if there are limits on social represented a resistance to the is such a conspicuous feature of the the power of the state, it is the state’s political vision, which the Constitution Constituent Assembly debates and the prerogative to determine, and if it so attempted to put in place. Rajendra Constitution, relates to what I have desires, to abrogate those limits. Prasad’s words to the Constituent called the political vision of the coun- The second aspect of the social, Assembly are tellingly suggestive. try for two broad reasons. First, issues which explains its prominence, relates They have all the familiar contrasts such mass poverty, illiteracy and near to its fundamental diversity in the and binaries. On one side stands the ubiquitous destitution belong to the Indian context. The diversity of India Constitution, the unified nation, the realm of necessity because they put – of its religions, languages, castes, men of honest character and integrity, human beings under the pressing dic- mores and ‘minor’ traditions – had the interests of the country, the abil- tates of their bodies. To the extent that been the leitmotif of colonial and ity to control and guide it; and on the political power concerns itself with nationalist ethnography and historio- other side, the diverse languages, the basic fact of sustaining life – and graphy dating back to Sir William castes, communal differences, preju- under modern conditions this is Jones. It supported the view of India’s dices and the ‘various elements of life’ 26 indeed a central aspect of politics, cultural and civilizational richness, with their ‘fissiparous tendency’. which has had a long genealogical link After all, a constitution like machine with medicine – political power itself 5. CAD, viii, page 40. is a lifeless thing. It acquires life

SEMINAR 615 – November 2010 because men who control it and Not surprisingly the text of operate it, and India needs today the Constitution never uses the terms nothing more than a set of honest federal or federation. men who will have the interest of the country before them. There is fissiparous tendency arising out of Arendt was clearly wrong to iden- various elements in our life. We tify political power that concerns have communal differences, caste itself with social issues as necessarily differences, language difference, leading to terror. But Arendt’s error provincial differences and so forth. was one of exaggeration and not of a It requires men of strong character, lack of insight, because her trenchant men of vision, men who will not statement does flag a powerful ten- sacrifice the interests of the coun- dency in the functioning of political try at large for the sake of smaller power when such power is obligated groups and areas and who will rise to primarily concern itself with social over the prejudices which are born questions. The prophecy regarding of these differences.6 terror has not been borne out in India. Constitutionalism, especially when it is democratic, clearly checks tyr- This is a casting of India in the very anny and many aspects of absolutism. terms that Hobbes had viewed English But the commitment to redress histo- history in the 17th century in his study rical injustices, alleviate the suf- of English Civil War. The social ferings of the body, create social domain was divisive; the political was equality, or a unified nation, in the unifying. The constitutional vision manner envisioned by the Constitu- was meant to eviscerate or, at a mini- tion, has produced a form of political mum, trump these social and fissipa- absolutism. Constitutionalism in rous tendencies by fixing them in a India has not led to a legacy that lim- unified political frame. In fact for its the power of the state or constrains Ambedkar even the idea of India being its reach. a federation was troubling because In this sense our constitutional- that term suggested the existence ism is very much in the tradition of of parts or states that had, as in the Hobbes, where there was never a sus- American case, come to an ‘agree- picion of power, because power was ment’ to form a federation. But for identified as the condition of life. Ambedkar the constitutional vision Similarly the absolutism of politics was one in which the ‘Union’ was not and the state has, perhaps, also con- at the mercy of any such agreement tributed to a culture in which the pres- with its constituent parts: tige of power in all segments of the The federation is a Union because population is inordinately high. Our it is indestructible. Though the constitutionalism constitutes power country and the people may be and increases and celebrates its ambit. divided into different States for It is only through politics and the convenience of administration, the specific kind of power it sanctions that country is one integral whole, its the nation can be imagined, adminis- people a single people living under tered and made just. But, it must be a single imperium derived from a added, in that vision, freedom is con- single source.7 signed to a distant prospect and the tendency for political power to ope- 27 6. CAD. rate without limits deeply ingrained, 7. CAD, ii, page 42. even if it is not always acted on.

SEMINAR 615 – November 2010 From ‘niti’ to ‘nyaya’ A M I T S I B A L

THE Constitution of India was adopted sonal liberty) and equality, the right on 26 November 1949, announcing against exploitation, the right to free- the birth of India as a democratic dom of religion, and cultural and edu- Republic, with a government that was cational rights of minorities. The to be elected by universal franchise. fundamental rights, enforceable by Equally, the Constitution proclaimed, the courts, could not be transgressed by loud and clear, that there were limits any law or executive action. Through to the power of the democratically these rights, the Constitution set up an elected legislature and executive. impregnable sphere in the life of each These limits were expressed in terms individual that was free from interfer- of the ‘Fundamental Rights’ to liberty ence by the state. (including the right to life and per- The Constitution also set out the 28 Directive Principles of State Policy, * The author would like to thank Syed Jafar Alam for his valuable contribution, in research principles of governance which man- and ideas towards this piece. dated the state to strive, amongst other

SEMINAR 615 – November 2010 things, to eliminate inequalities in The Directive Principles in Part IV how the Directive Principles have status and opportunity and establish a could not be enforced in this way. This been transformed from a mere set of just social order, to secure adequate non-justiciability of the Directive laudable socio-economic policy goals means of livelihood, equal pay for Principles has had a considerable for the legislature and the executive, equal work, distribution of ownership bearing on the complex and circuitous or ‘Niti’, into an important site for the and control of material resources for way in which socio-economic rights development of a unique ‘transcen- the common good, provision of care have come to be recognized by Indian dental jurisprudence’ in aid of social and education for children, free legal courts. justice.4 aid and promotion of educational and Owing to this stated lack of economic interests of the weaker sec- enforceability, the Directive Principles tions of the people. While the Funda- were at first regarded by the Supreme In the constitutional and political dis- mental Rights were expressed mainly Court as a glorified wishlist, for the course of the first two decades after in terms of freedom from interference state to strive toward on a ‘best efforts’ the Constitution was adopted, the posi- by the state, the Directive Principles basis, separate from and strictly sub- tion of the Directive Principles was were in the nature of socio-economic servient to the fundamental civil and defined by a dialectical dynamic bet- goals that required state action. political rights. Later, in part goaded by ween the executive5 and the judiciary. brute legislative force, the Supreme Heirs to the common law traditions of Court began to read the Directive Prin- colonial jurisprudence, the judges of In a newly independent nation where ciples in conjunction with the Funda- the Supreme Court in these years were the majority had to struggle for the mental Rights provisions. Over time, markedly literal, or positivist, in their basic requirements of food, clothing the Directive Principles became ins- approach to interpreting the Funda- and shelter, not to speak of education trumental in the constitutionalisation mental Rights and the Directive Prin- or health care, the Directive Principles of a whole new range of positive ciples, perhaps on account of their were a powerful reminder of all that rights,2 enormously expanding the sheer novelty.6 Being in a separate needed to be done even just to ensure boundaries of ‘redressable injustice’3 chapter from the Fundamental Rights a life of basic human dignity for all. in India. and non-justiciable, the Directive As such – as an end in themselves, and Principles were generally regarded by as a precondition to the enjoyment by the Supreme Court as being solus, all of the ‘fundamental’ political and This piece will recount the evolving separate and distinct from and inferior civil rights – the Directive Principles approach of the Supreme Court, as the to the Fundamental Rights; in cases were just as important as the Funda- ultimate judicial interpreter of the where the two were seen to be in con- mental Rights. Constitution, to the Directive Princi- flict, the courts held the Directive Curiously, however, even though ples over the three score years of the Principles to be subservient to the the Constitution said the Directive working of the Indian Constitution, Fundamental Rights, if not entirely Principles, set out in Part IV, were and trace, summarily and critically, superfluous.7 ‘fundamental in the governance of the 4. U. Baxi, ‘Transcendental Jurisprudence: country’, they were stated to be not 2. By ‘positive rights’ I mean socio-economic Justice Krishna Iyer’, in C.R. Kumar and ‘enforceable by any court.’1 By con- rights that require state action, while ‘negative’ K. Chockalingam (eds.), Human Rights, rights are in the nature of civil and political trast, the provisions of Part III – the Justice and Constitutional Empowerment. rights that are expressed in terms of non-inter- OUP, 2007, pp. 7-16. Fundamental Rights, were said to be ference by the state. See for instance, I. Berlin, Four Essays on Liberty. OUP, 1969. 5. The legislature and the executive were justiciable or enforceable on account largely coextensive during this period as the of Articles 32 and 226, whereby a citi- 3. In Amartya Sen’s view, it is not the idea of a Congress consistently made up an overwhelm- zen could petition the Supreme Court completely just world that moves people, but ing majority of the central and the state legis- their ‘identification of redressable injustice’; latures. or a High Court for the enforcement the Parisians would not have stormed the of these rights. If the courts found that Bastille, Gandhi would not have challenged 6. None of the earlier constitutional acts had such provisions. a law or some executive action was in the British Empire and Martin Luther King would not have fought white supremacy had it 7. Indeed, Seervai, one of the latter day pro- violation of any of the Fundamental not been for ‘their sense of manifest injustice ponents of this view asserted that ‘if directive Rights in Part III, it would be declared that could be overcome’: they ‘were not trying principles had not been enacted or were struck pro tanto invalid and struck down. to achieve a perfectly just world…, but they did out nothing would have happened. But if fun- 29 want to remove clear injustices to the extent damental rights had not been enacted or struck they could.’ (emphasis added) See A. Sen, The out, the result would have been disaster.’ 1. See Article 37, Part IV of the Constitution. Idea of Justice. Penguin, 2009, p. vii. See, H.M. Seervai, Constitutional Law of

SEMINAR 615 – November 2010 to economic rights. Throughout the acts were shielded from judicial scru- The legislature, however, took a 1950s and the 1960s, the courts struck tiny by the First Amendment which more ideological view of the Directive down various enactments relating added Articles 31A and 31B and the Principles, and the socialistic goals to compulsory land acquisition and Ninth Schedule to the Constitution. that some of the Directive Principles nationalization of business for inter- The former saved laws providing for embodied were thought to be of over- fering with Fundamental Rights land acquisition by the state and other riding importance. So, as and when protected under Articles 19 (the fun- expropriating legislation from being judicial decisions struck down or damental right to freedom of speech struck down as violative of the funda- diluted a new enactment, Parliament and expression, assembly, free move- mental rights contained in Articles 14 promptly revised the new law and/ ment, residence, profession or occu- (the right to equality before the law or amended the Constitution to cir- pation, trade or business) and 31 (the and equal protection of the laws) or cumvent these judicial decisions. In fundamental right not to be deprived Article 19. The latter (Article 31B) Champakam Dorairajan8 when the of property, except in accordance with provided protection to all the legisla- Supreme Court was urged to read the law, subsequently repealed in 1978). tion listed in the Ninth Schedule from citizen’s right not to be discriminated Equally consistently, the legislature being struck down as violative of against on grounds of religion, caste, enacted amendments to the Constitu- any fundamental right, even if it had sex of birth under Articles 15(1) and tion to circumvent these rulings. ‘It is already been struck down before. 29(2)m9 harmoniously with Article for Parliament to decide …[the] law 46, which enjoins the state to promote we should have,’ Nehru said, and if ‘with special care the educational and the courts saw a contradiction bet- The 4th and 17th Amendments were economic interests of the weaker sec- ween the Fundamental Rights and the made to amplify newly enacted land tions of the people’, the Supreme Directive Principles, ‘it is up to Par- reform legislation curtailing the right Court held that ‘(t)he directive prin- liament to remove the contradictions to property. The 4th Amendment ciples of the [sic] State policy, which and make the Fundamental Rights (1955) was enacted to overcome the by Article 37 are expressly made subserve the Directive Principles of effect of the Supreme Court’s decision unenforceable by a court, cannot over- State Policy.’10 in State of West Bengal v. Mrs. Bela ride the provisions found in Part III... Banerjee13 (1954) by adding Article The Directive Principles of State 31(2A) to Article 31(2) to make ‘com- Policy have to conform to and run as So, when the Allahabad High Court pensation’ for acquired land non- subsidiary to the Chapter of Funda- ordered the state government to desist justiciable and incorporate the law mental Rights.’ In response, Parlia- from nationalizing private trans- in question, the West Bengal Land ment passed the Constitutional (First port businesses,11 the Constitutional Development and Planning Act, 1948, Amendment) Act, 1951, amending (First Amendment) Act, 1951 added into the Ninth Schedule. Article 15 by adding Article 15(4) a clause to Article 19(6) to prevent the The 17th Amendment (1964) which provided that Articles 15 or invalidation of nationalizing legisla- amended Article 31A to bring 29(2) would not ‘prevent the State tion for violating the fundamental ‘ryotwari’ lands within its ambit, from making any special provision right to freedom of trade and com- after the Supreme Court held in for the advancement of any socially merce guaranteed by Article 19(1)(g); Karimbil Kunhikoman v. State of or educationally backward classes of and when the courts invalidated state Kerala14 (1962), that the taking of citizens.’ zamindari abolition acts12 for being ‘ryotwari’ lands under the Kerala The difference in viewpoint bet- violative of the citizen’s right to pro- down the Bihar Management of Estates and ween the legislature and the judiciary perty protected under Article 31, such Tenures Act, 1949 and in Kameshwar Singh was even more pronounced in relation (Darbhanga) v. The State of Bihar, AIR 1951 10. Lok Sabha Debates, 1955, Vol. 3, No.16, Pat 91ff, it struck down the Bihar Land India: A Critical Commentary. Fourth Edition. cols. 1948, 1953 and 1956, 14 March 1955, Reforms Act, 1950. The latter ruling was Tripathi, 1991, Vol. II, p. 1921. quoted in G. Austin, Working A Democratic upheld by the Supreme Court in State of Bihar 8. State of Madras v. Champakam Dorairajan, Constitution: A History of the Indian Expe- v. Maharajadhiraja Sir Kameshwar Singh AIR 1951 SC 226. rience. OUP, 1999, p. 108. of Dharbhanga and Ors., 1952(3) SCR 889ff, although the act had been incorporated in the 9. Article 15(1) provides that the state shall not 11. Motilal and Ors. v. State of U.P. and Ors., AIR 1951 All 257ff. Ninth Schedule, to keep it outside the pale of 30 discriminate against any citizen on grounds of judicial scrutiny. religion, race caste, sex or place of birth, and 12. For instance, in Sir Kameshwar Singh Article 29(2) provides that no citizen will be (Darbhanga) v. The Province of Bihar, AIR 13. AIR 1954 SC 170. denied admission on any of these grounds. 1950 Pat 392ff, the Patna High Court struck 14. 1962 Supp (1) SCR 829ff.

SEMINAR 615 – November 2010 Agrarian Relations Act, 1961, was not 31C was thus designed to give the legis- Justice K.S. Hegde held that ‘there is protected from judicial scrutiny; it lature the last word in law making. no antithesis between the Fundamen- also added another 44 pieces of legis- tal Rights and the Directive Princi- lation to the Ninth Schedule. ples. One supplements the other. The This dialectical relationship In Kesavananda Bharati, the 25th Directives lay down the end to be between an assertive legislature and Amendment was challenged along achieved and Part III [the chapter on an independent judiciary became with the 24th and 29th by the head of Fundamental Rights] prescribes the more pronounced in the late 1960s and a muth in Kerala for interfering with means through which the goal is to be the 1970s when Indira Gandhi became his freedom to administer the muth’s reached.’20 Justice Chandrachud prime minister. As many as twenty properties.16 Perhaps in part feeling observed ‘(t)hat one is justiciable and amendments were brought in the the need to attenuate the rift that had the other not, may show the intrinsic Constitution between 1967 and 1976 arisen with the legislature in the pre- difficulties in making the latter enforce- (as many as in the last two decades put vious years and influenced by the gov- able through legal processes, but that together) as the government acquired ernment’s ongoing efforts to ‘commit’ distinction does not bear on their land, nationalized banking, insurance, the judiciary,17 the Supreme Court relative importance… If the State mines, steel plants, textile mills and sought to take a ‘balanced’ view: it fails to create conditions which the shipping lines and ended the princes’ upheld the validity of the first part of fundamental freedoms could be privileges and privy purses. A Article 31C, while striking down enjoyed by all, the freedom of the few byproduct of this dialectic was a the latter part,18 and restricted Par- will be at mercy of the many and then rejigging of the relationship between liament’s power to amend the Consti- all freedoms will vanish.’ the Fundamental Rights and the tution by propounding the ‘basic Kesavananda Bharati did not Directive Principles with the decision structure doctrine’, that broadly speak- perhaps address what would happen in Kesavananda Bharati (1973).15 ing, Parliament did not have power to where the Directive Principles and make amendments that altered the the Fundamental Rights came into ‘basic structure’ of the Constitution. conflict with each other. This aspect By the 25th Amendment (1971), The reasoning used in some of the came to be considered a few years Parliament had added to the Constitu- individual judgments19 written in later in Minerva Mills21 (1980), when tion Article 31C, which provided, Kesavananda marks a significant shift the Supreme Court was called upon first, that no law giving effect to the away from the view that the Directive to consider the validity of the 42nd Directive Principles specified in Principles were subservient to the Amendment. Articles 39 (b) and (c) could be Fundamental Rights. Speaking for deemed void for being inconsistent himself and Justice A.N. Mukherjea, with the fundamantal rights in Articles he 42nd Amendment had been 16. All three amendments had the effect of T 14 or 19, and second, that no law that saving the Kerala Land Reforms Act, 1963 and enacted at the height of the Emergency: contained a declaration that it was for the Kerala Land Reforms (Amendment) its main drift was to consolidate the giving effect to such policy could be Act, 1969 and 1971, from judicial review: so power of the government of the day to maintain the challenge to the acts, these questioned in any court on the ground amendments had to be challenged too. by, amongst other things, ‘trimming’ that it did not give effect to such 17. For an interesting account of some ‘unu- 11 disparate judgments spanning over 700 policy. This was significant, as Clause sual happenings’ that may have affected the pages in all. An attempt was made to stream- (b) of Article 39 directs the state to Supreme Court’s ruling in Kesavananda, see line the diversity of judicial opinion so secure that the community’s material supra fn. 22 pp. 269-277. expressed by way of a statement signed by 9 18. The first part, which was upheld, was that judges. These nine judges held the 24th and resources are distributed to serve no law giving effect to the Directive Principles 29th Amendments to be valid while the 25th the common good while Clause (c) specified in Articles 39 (b) and (c) could be was held partially valid. But many a legal directs that the state ought to secure deemed void for being inconsistent with the scholar has concluded that the judgments of even these judges differ on many aspects. that the operation of the economic fundamental rights in Articles 14 or 19. The second, which was struck down, was that Seervai concludes that if the case were to be system should not result in the concen- no law that contained a declaration that it examined by itself, it was possible to argue that tration of wealth or means of produc- was for giving effect to such policy could be the judgments of seven of the 13 judges, even as to the doctrine of basic structure (for which tion to the common detriment. Article questioned in any court on the ground that it did not give effect to such policy. the case is best known) disclosed no common ratio. 31 15. His Holiness Kesavananda Bharati 19. The case was heard by a 13 judge bench of Sripadagalvaru v. State of Kerala, 1973 (4) the Supreme Court over some 70 working 20. Supra fn. 15 at para 716, p. 503. SCC 225. days whereafter the 13 judges pronounced 21. (1980) 3 SCC 625.

SEMINAR 615 – November 2010 the ambit of judicial review and Thus, the 1970s marked a mile- conditions of developing countries expanding the amending powers of stone in the approach of the courts and obligated by Article 38 of the Con- Parliament, making them virtually toward the Directive Principles when stitution.’28 The change in interpretive limitless. In relation to the Directive emphasis came to be laid on the latter model was coupled with a ‘procedural Principles, along with adding the part of Article 37 that ‘the principles… revolution’ when by widening the word ‘Socialist’ to the Preamble and laid down [in the Directive Principles locus standi (standing to sue) rule, the three more provisions22 to Part IV, Par- of State Policy] are nevertheless fun- Supreme Court entertained petitions liament sought to amend Article 31C damental in the governance of the by strangers for the enforcement of to provide that no law enacted to give country.’ By the end of that decade, the rights of others who could not for effect to any of the Directive Princi- the Directive Principles came to be social or economic reasons approach ples would be rendered void for being regarded as being at least as important the courts themselves. inconsistent with Articles 14, 19 or as the Fundamental Rights, despite 31.23 The proposed amendment would being non-justiciable. In the reforma- have in effect rendered the Directive tory wave that followed the lifting of Significantly, the post-Emergency Principles the determining factor in the Emergency and the coming to period also saw the rise of many new law making rather than the Funda- power of the first non-Congress gov- social movements, a trend that had mental Rights, and the legislature, not ernment, this was enough to initiate a surfaced in the early 1970s but gath- the judiciary, would thenceforth have fresh cycle of historic churning. ered momentum as a reaction to the the final say on what laws would gov- Emergency. Thus, the late 1970s and ern India. the 1980s saw the establishment Following the Emergency, almost as of many civil rights groups,29 the if to make up for its indifferent record feminist movement and the environ- In Minerva Mills, the Supreme Court during it, the judiciary emerged ‘as mental movement,30 while older declared the proposed amendment to the last refuge of lost causes.’24 In movements such as the trade union Article 31C void for being beyond the what represented a sharp break from movement gained strength as they amending power of Parliament as pre- the positivism of its earlier years, spread from factories to mines and scribed earlier in Kesavananda the judiciary now came to draw on the cottage industries. These social move- Bharati: it held that to make the Fun- Directive Principles as the ‘inspi- ments came to rely upon the Supreme damental Rights guaranteed by Arti- ration’25 for a ‘transcendental juris- Court to address their concerns: and cles 14, 19 and 21 run subsidiary to prudence’, one that transcended the the Supreme Court responded impres- the Directive Principles offended the positivist colonial tradition of sively in a flurry of decisions, which ‘basic structure’ of the Constitution. justicing26 and gave effect, at long last, have since firmly established a rela- Justice Chandrachud, voicing the to the ultimate clause of Article 37 – tionship of interdependence between majority view, observed that ‘Part III ‘the duty of the State to apply these the civil and political rights embodied and Part IV together constitute the [Directive] principles in making in the Fundamental Rights and the core of our Constitution and combine laws.’ This represents perhaps the sin- socio-economic goals contained in the to form its conscience, …just as the gularly most important development Directive Principles. rights conferred by Part III would be in Indian jurisprudence and one that Bandhua Mukti Morcha31 (1984) without a radar and a compass if they has since influenced international is typical of the judicial rulings that were not geared to an ideal, in the thinking considerably.27 same manner the attainment of the ide- The judiciary was hereafter 27. The South African Constitution is to some als set out in Part IV would become a ‘informed by the broader principles extent inspired in this respect by the Indian pretence for tyranny if the price to be of access to justice necessitated by the Constitution, though its constitutional court has tried to balance its own powers with that paid for achieving that ideal is human of other branches of the state rather more freedoms.’ effect to the principles specified in Article 39 carefully. (b) and (c). 22. These were Articles 39A, 43A and 48A, 28. See supra fn. 26. which mandated the state to provide for free 24. Justice Krishna Iyer, in Municipal Coun- 29. The People’s Union for Democratic Rights legal aid, the participation of workers in the cil, Ratlam v. Vardichan and Ors., (1980) and the People’s Union for Civil Liberties, 4 SCC 162. 32 management of industry and protect and to name two. improve the environment, respectively. 25. Y.P. Ghai, ‘Foreword’, in C.R. Kumar and 30. The Centre for Science and Environment 23. Prior to this amendment, Article 31C K. Chockalingam (eds.), op cit. and Kalpavriksha, for instance were set up in saved only those laws that were passed to give 26. See supra fn. 4. this period.

SEMINAR 615 – November 2010 have since become more or less the of the interpretive strategy employed Vishaka41 (1997) certain social activ- standard. In that case, the Supreme in the previous decade, the Supreme ists and NGOs petitioned the Supreme Court entertained a letter addressed to Court read many of the Directive Prin- Court to intervene in a case involving it by a non-governmental organiza- ciples from Part IV into the Fun- the brutal gang rape of a social worker tion, treating it as a writ petition damental Rights in Part III, which in Rajasthan and correct the state’s under Article 32. The organization reading has since been affirmed. Thus, failure to provide ‘gender justice’ and complained in its letter of the exist- the Supreme Court relying on a com- prevent sexual harassment at the ence of ‘bonded labour’ in various bined reading of Articles 21 (the Fun- workplace. parts of the country and sought the damental Right to life), 47 and 48-A court’s intervention against it. (both part of the Directive Princi- Dismissing the preliminary ples),32 has recognized a ‘right to The Supreme Court, relying upon objection that the person writing the fresh air, clean water and pollution Articles 14, 15, 19, 21, interpreted letter did not have sufficient standing, free environment’,33 Article 4534 has widely in light of the Directive Prin- or locus, to sue, the court observed that prompted the recognition of the ‘right ciple in Article 45, proceeded to issue ‘when a complaint is made on behalf to education’ as a part of the ‘right to ‘guidelines and norms for employers of workmen that they are held in bond- life’ under Article 21,35 Articles 38, 39 or other responsible persons in age and are working and living in mis- and 4636 have been relied upon to rec- workplaces or other institutions’ to erable conditions … it is difficult to ognize the ‘right to residence and prevent the commission of acts of appreciate how such a complaint can settlement’ as facets of the Fundamen- sexual harassment. Similarly, in M. C. be thrown out on the ground that it is tal Rights guaranteed under Articles Mehta v. State of Tamil Nadu42 (1996) not violative of the fundamental right 19(1)(e) and 21,37 Article 47 has where the petitioner complained of the workmen… This right to live prompted acknowledgement of the about child labour and requested the with human dignity enshrined in ‘right to food’,38 and Articles 38, 39, court to stop this practice and institu- Article 21 derives its life breath from 41, 42, 43, 46 and 48A (all part of the tionalize a rehabilitation scheme, in a the Directive Principles of State Directive Principles) have enabled the conjoint reading of Articles 24 and 45, Policy and particularly Clauses (e) recognition of the ‘right to health’.39 the court proceeded to issue directions and (f) of Article 39 and Articles 41 in the form of a ten point action plan and 42 and at the least, therefore, it requiring all state governments to must include protection of the health An interesting fallout of the wid- enforce legal obligations against pri- and strength of workers, men and ened locus standi rule, and one that is vate employers, and requiring private women, and of the tender age of chil- especially relevant to a liberalized employers to contribute to a welfare dren against abuse, opportunities and political economy, has been the ‘hori- facilities for children to develop in a zontal’ application of the complex of 35. J.P. Unni Krishnan v. State of Andhra healthy manner and in conditions of Directive Principles-Fundamental Pradesh, (1993) 1 SCC 645. Education is freedom and dignity, educational faci- Rights to relations between private now a fundamental right under Article 21A, lities, just and humane conditions of individuals rather than exclusively by under the 86th Amendment in 2002. work and maternity relief.’ individuals against the state.40 In 36. Article 46 mandates the state to protect the educational and economic interests of 32. Article 47 of the Directive Principles the weaker sections and protect them from mandates the state to raise the level of nutri- social injustice and all forms of exploitation. ome the 1990s, in the backdrop of tion and the standard of living and to improve 37. P.G. Gupta v. State of Gujarat & Ors., 1995 C public health. Article 48-A of the Directive Supp(2) SCC 182. the weakening of the executive arm of Principles mandates the state to protect and 38. Chameli Singh v. State of Uttar Pradesh, the Indian state with the formation of improve the environment and to safeguard the (1996) 2 SCC 549. a series of coalition governments forests and wildlife of the country. 39. Consumer Education and Research 33. Vellore Citizens Welfare Forum v. Union since 1989, as well as a relative con- Centre v. Union of India, (1995) 3 SCC 42. of India, AIR 1996 SC 2715. traction in the role of the state as a 40. S. Krishnaswamy, ‘Horizontal Application 34. Article 45 originally mandated the state to of Fundamental Rights and State Action in result of the economic liberaliza- provide free and compulsory education to chil- India’, in C.R. Kumar and K. Chockalingam tion reforms of 1991, the ‘activist’ ten- dren between the ages of six and fourteen (ed.), Human Rights, Justice and Constitu- years, as a Directive Principle. After the 86th dency in the judiciary became even tional Empowerment, OUP, 2007, pp. 47-73. more pronounced. In its continued use Amendment in 2002, this has been converted 33 into a Fundamental Right and replaced by an 41. Vishaka and Ors. v. State of Rajasthan and obligation upon the state to secure childhood Ors., (1997) 6 SCC 241. 31. AIR 1984 SC 802. care to all children below the age of six. 42. (1996) 6 SCC 756.

SEMINAR 615 – November 2010 scheme for children taken out of the forced eviction of large masses of labour market. people even though there was consi- The ‘transcendent’ approach, derable legal material to show that the however, is not devoid of problems. In raising of the height of the Sardar the last two decades, judicial activism Sarovar dam was contrary to current has been criticized as an unwarranted legal standards. encroachment on the legislative and executive sphere by unelected judges, who moreover may lack the requisite Nonetheless, the Directive Princi- expertise to pass judgment or make ples have greatly strengthened the decisions on many matters, for ins- ‘rights’ discourse in India by provid- tance in matters relating to the envi- ing the courts with the theoretical ronment. Judicial activism has also framework as also systemic legiti- sometimes provided too convenient macy to create and enforce not just an escape route to the executive and civil and political rights, or ‘negative’ the legislature to deflect responsi- rights that ensure an impregnable bility for potentially unpopular deci- sphere of freedom from interference sions. by the state, but socio-economic rights or ‘positive’ rights, that require positive state action for their reali- While some of these criticisms may zation. be misplaced, especially when the The synergy created by the inter- record of the judiciary is considered play between the Directive Principles relative to the record of the legislature and the Fundamental Rights during and the executive, it is true that judi- the sixty years we have lived with the cial intervention by its very nature is Constitution has enabled the courts to fragmentary, sporadic and lacks the recognize what may be called a com- scale required for the realization of posite right to development. While positive rights. Also, as the judiciary litigation and adversarial action alone has found itself increasingly perform- cannot realize the right to develop- ing functions that are in the nature of ment, the very constitutionalisation of governance or policy-making, it has the idea that the state is obligated ‘to sometimes tended to share the preva- create conditions in which the funda- lent ideologies of government and mental freedoms could be enjoyed by taken a relatively conservative view all,’46 marks a significant advance in of various rights.43 Thus in T.K. the right direction. The Directive Prin- Rangarajan44 the court declared that ciples began firmly in the realm of the Tamil Nadu government employ- ‘Niti’, being policy goals to guide gov- ees had no legal, moral or equitable ernance that were not enforceable in right to strike and in the Narmada any court of law. Over time, the Direc- Bachao Andolan case45 permitted the tive Principles have become firmly ensconced in the realm of ‘Nyaya’, in 43. B. Rajagopal, ‘Judicial Governance and the jurisprudence of constitutional the Ideology of Human Rights: Reflections from a Social Movement Perspective’, in rights in aid of social justice. The irony C.R. Kumar and K. Chockalingam (eds.), is inescapable: while the Directive op cit., pp. 200-236. Principles were stated not to be 44. T.K. Rangarajan v. Government of Tamil enforceable ‘by any court’ and were Nadu and Ors., 2003. meant to move legislative and execu- 45. Narmada Bachao Andolan v. Union of 34 India & Ors., (2000) 10 SCC 664. tive action, it is the judiciary that has 46. Justice Chandrachud in Kesavananda come to imbue the Directive Princi- Bharati (1973). ples with a peculiar legal force.

SEMINAR 615 – November 2010 Transforming equality in India S A L M A N K H U R S H I D

THE Constitution of India is a remark- equality to substantive equality on the able historical document that is essen- ground. Despite hours of debate over tially rooted in the idea of equality. the years and volumes of written It provides a contractarian basis for word, both academic and journalistic, our constitutional society. For a the decision to implement the Mandal considerable period it was assumed Commission recommendations by that equality was a consequence and Prime Minister V.P. Singh led to indeed an imperative of socialism; massive and dramatic protests in the Preamble of the Constitution was defence of meritocracy. In the Indira even amended by the Forty Second Sawhney case, the Supreme Court Amendment Act, 1976 to reflect the examined the decision at length and socialist character of the Republic. whilst it showed deference to the The court was thus able to deduce executive in the matter of need for equal pay for equal work and strike special provision for weaker sections, down policies that failed to adhere to it excluded the better-off sections socialist goals as in Excel Wear. But described as the ‘creamy layer’ from recent years have seen structural those benefits. The 27 per cent OBC reform and disinvestment policies reservations in education finally came that have given a conscious space for to be implemented under UPA-I growth to the market. Meanwhile with additional grants to educational the Preamble remains unchanged and institutions for expansion of their has not prevented the Supreme Court infrastructure to ensure that legiti- from adapting to changing times, as mate expectations of meritorious in BALCO Employees Union v. Union candidates are not sacrificed. Ashoka of India. Thakur’s case put the Supreme Court’s For several decades since the approval on the idea of these reserva- early days of India’s independence, tions being part of the present gene- 35 Parliament and the judiciary have ration’s efforts to advance equality endeavoured to move beyond formal between citizens.

SEMINAR 615 – November 2010 Since independence, the model and Schedule Tribes in state sector Art. 15 and Art. 16 do not squarely used by Indian law-makers for advance- employment (Art. 335), educational apply to the later articles and that the ment of equality has been that of institutions as well as seats in legisla- period for this reservation could be reservations or the quota system. Its tures (Arts. 330 and 332). In legisla- much shorter. The process of identi- earliest form is to be found in the Con- tures seat reservations were expressly fication of backwards for local self- stitution itself: special provisions for intended for ten years but have peri- government, at least in theory, is dalits and tribals in the matter of jobs odically been extended without any therefore distinct from identifica- and seats in legislatures, (Art. 15(4) resistance. More recently, other disad- tion of SEBCs (Socially and Educa- and Art. 16(4) & 16(4A)/(4b), initially vantaged groups, including women, tionally Backward Classes) inade- for a decade, but since then perio- have been included in employment quately represented in government. dically extended to the present and as well as education (22 per cent However, we are still to see an actual beyond. The courts have interpreted for dalits and 27 per cent for OBCs). difference on the ground. that as a legitimate attempt at politi- Ashoka Thakur’s case has become Interestingly, the court held, cal and social remediation of the his- the definitive pronouncement for ‘We are not in a position to examine torical exploitation and denial of inclusion of OBC (to be read as other the claims about overbreadth in the equal respect and dignity to the for- backward classes, not castes) in edu- quantum of reservations provided for mer untouchables. One might see cational institutions. OBCs under the impugned state this either as a moral corrective (fair- legislations since there is no contem- ness and compensation) or a sensible poraneous empirical data.’ Although political strategy to ensure the sustain- Significantly, the identification of in principle susceptible to judicial ability of our constitutional arrange- backwardness is done on the basis of challenge for under-inclusion or over- ment (enlightened self-preservation). class backwardness, although castes inclusion, reservation decisions are Of course, there are people who remain are for practical reasons made the left to the subjective (read political!) convinced that there is little justifica- starting point. There are rules of satisfaction of the ruling party and tion in visiting the ills of parents upon thumb for judging the backwardness government. Whilst the Supreme their children: why must the present of a group or community but, as the Court has left it for a future occasion generation pay for the damage caused several rounds of litigation before to test the validity of reservations, the by earlier generations? Justice bet- constitutional bench of the Andhra Patna High Court was more willing in ween generations, after all, does not Pradesh High Court have shown, for Janardhan Paswan v. State of Bihar mean this! backward Muslims there is no defini- and Krishna Kumar Mishra v. State of tive test. As it turns out, the entire list Bihar to strike down reservations of OBCs is a list of different castes, where the legislature was already 70 The Supreme Court of India has con- so much so that common parlance is per cent occupied by elected OBC sciously rejected such reasoning, limited to caste references, encourag- members. although after judicially noticing ing minority reservation protagonists the qualified affirmative action justi- to seek a quota for their communities fication accepted by the American on a similar loose logic of inclusion. The ironic fact is that although caste Supreme Court. Whilst the American For many decades it was believed politics remains a ground reality and courts insist upon specific justifica- that the Supreme Court would enforce several political parties survive on tion for departure from formal equal- a ceiling of 50 per cent, but the recent explicit or implicit advocacy and ity, our own courts have accepted not judgment S.V. Joshi v. of State of dominance of particular castes, pub- only a general need but also an obli- Karnataka has at least temporarily lic discourse pretends to emphasize gation to do so. Thus the mandate for upheld 69 per cent in Tamil Nadu. our commitment to a casteless society reservation under Art. 15(4) and 16(4) In expanding the footprint of and, therefore, our institutional ambi- has been liberally interpreted as they empowerment, the state has intro- guity in not admitting the fact. This are seen to provide opportunity to duced reservations in local self- has also prevented us from gather- established disadvantaged groups that government. But in Dr K. Krishna ing explicit data on castes since 1931 would not otherwise have been pos- Murthy v. Union of India, while (except of SCs and STs). The recent 36 sible in a strict meritocracy. upholding Art. 243-D and Art. 243-T chorus for a caste-based national cen- The band of reservations runs the Supreme Court nevertheless indi- sus is obviously driven by the hope from provisions for Schedule Castes cated that the principles that apply to and expectation of backward classes

SEMINAR 615 – November 2010 (castes) to establish empirically that next two decades. Reservation in pri- minority groups alone. Besides, it has their numbers are indeed far greater vate sector on the other hand would been argued that although minority than is officially admitted. The obvi- have to be considered in the context groups are most obvious sufferers of ous object is to buttress their argu- of competing claims of neighbouring disadvantage, the possibility of some ment for a larger share of the cake of countries for FDI. We will have to majority groups also being victims reservations. choose between a few jobs assured by of disadvantage cannot be ruled out Of course, if the Supreme Court reservation against the much larger entirely, as in the case of internally dis- notional ceiling of 50 per cent on res- number to spread around without the placed persons. ervations of all kinds stands, there dampener of conditionalities for curiously remains some confusion incoming investment. about whether OBCs get 27 per cent In 1950 when the Constitution was as a notional half of their population adopted there was an imperative to or simply the leftover after reserving During UPA-I tenure, the setting up focus on the then prevalent arguments 22 per cent for dalits and tribals of the Sachar Committee was a major in democracy of majority-minority proportional to their total population. milestone in public discourse in that entitlements. Furthermore, unlike The caste census as an independent for the first time Muslims were made other democracies India uniquely headcount will be to the designs of the focus of concern instead of the focused affirmative action, including the backward caste leadership, but if more general term of minorities. Inter- reservations, on sections of the major- it is included as part of the data col- estingly, amongst some far reaching ity instead of minority communities. lection on living conditions of citizens recommendations of the committee is Thereafter, over the years we have (although the first phase of the census the setting up of the Equal Opportu- established commissions to address already having concluded), the infor- nity Commission and its companion, the empowerment aspirations of mation that the Supreme Court regu- the Diversity Commission. The UPA- different groups. So we have the larly admits not to have, might well II government thought it appropriate Schedule Caste and Schedule Tribe change the entire discussion on back- to telescope the two: the EOC would Commission, the OBC Commission, wardness and social equity. upon being established be able to Women’s Commission, Minority draw upon the data collected by the Commission, Safai Karamchari Com- National Data Bank as well as the mission, Denotified Tribes Commis- Even as the reservation space gets Assessing and Monitoring Authority. sion among others. Our political crowded and there is a growing demand But the real leap of imagination language is replete with references by other groups to be included, peo- and paradigm shift comes in the pro- to weaker sections, disadvantaged, ple are already eyeing the private sec- posed EOC breaking the public- socially and economically backwards tor. Nascent steps to find a foothold private barrier as well as the strait- or simply backwards. for dalits and tribals in the private jacket of traditional notions of mino- Each commission has a restricted sector led to the Prime Minister’s rity groups to provide an equality mandate to pursue the good of its Office reaching out to industry with platform to all deprived groups. It will earmarked beneficiaries. That indeed innovative affirmative action ideas. take a while for people accustomed to assures that the required degree of More recently the commerce minister the vocabulary used since independ- mandated benefits flow to the targeted and social welfare minister too have ence to become comfortable with the group but permits little opportunity knocked on the door of industry to emerging idiom. What do they know for inter-group comparisons and weigh- persuade them of their social obli- of minority who only minority know? ing of equities. None of the commis- gations. There is, however, an interesting con- sions have access to comprehensive Simultaneously, far reaching vergence of views between liberals data that gives a picture of the entire efforts by way of skills development and conservatives in interpreting the society. In many ways these commis- programmes linked with actual emp- ambit of the proposed EOC: the sions work under the same constraints loyment were launched for BPL former would wish to see all disadvan- as courts, in that the petitioner-com- candidates. Employability and not taged groups get access to the EOC in plainants are expected to supply infor- employment per se is the focus of the a broad-based approach, whilst the mation pertinent to their claims and effort on the assumption that demand latter would seek a comprehensive the issue is decided in an adversarial 37 for skilled hands in several sectors is coverage on account of the traditional contest. The EOC will be equipped expected to grow exponentially in the posture against appeasement of the and designed to overcome that and

SEMINAR 615 – November 2010 indeed work with the larger picture, caste figures independently and not as latter including diverse attributes like essentially addressing group entitle- part of an individual’s biometric pro- health, education, privacy, livelihood, ment rather than individual grievances, file linked with living conditions. housing and shelter, legal aid and although the latter could well trigger With the proposed EOC expected to speedy trial et al. In the process, the off an enquiry about the former. seek sector-wise or even institution- two articles have converged to pro- There is an assumption about wise data, there will remain a grey area vide a non-discriminatory, just and democracies that minorities are sus- of institutional attitudes. But certainly fair regime for the citizen. Dignity is ceptible to disadvantage and discri- the EOC working materials to be col- intrinsically linked with the idea mination. But, there is a theoretical lected by the National Data Bank are of equality and thus with the equal possibility that the majority is denied a prerequisite for the commission ful- bargain that forms the basis of a con- equal opportunity, as in the case of filling the objective of becoming a tractual relationship. An unequal over-inclusion or irrational classifi- new generation equality institution. relationship becomes an unconscion- cation. Of course, every complaint of Many other traditional equality able bargain and an unconstitutional discrimination cannot be accepted on barriers are beginning to collapse. state of affairs as held in the Central face value. Some of the exaggerated From the air hostesses case (Nargis Inland Water Transport Corporation claims of Hindutva, for instance, Mirza) to permanent commissions for v. Brojonath Ganguli. deserve to be rejected. So indeed must women in the armed forces has been be the extreme positions taken by a long journey. Yet our equality debate Muslims or other minority persons continues to revolve entirely around For many years jurists and judges claiming monopoly of opinions on correction of deprivation of an indi- grappled with the inherent tension issues relating to their respective com- vidual rather than the political benefit between Fundamental Rights (includ- munities. of diversity to society. Compensating ing Article 14) and the Directive Prin- past wrongs is vulnerable to compet- ciples of State Policy. In a sense it was ing arguments on behalf of present seen as the ultimate contest between An interesting development that is citizens in no way responsible for the equality and liberty or society versus taking place of late is the inevitable past. But enlightened public policy the individual. The debate, relying move towards a caste based census. support for diversity in the work space heavily on a libertarian interpretation The demand came from quarters that or academia is a proposition that of the greatest good of the greatest presumably expect higher population merits closer examination. This may number, culminated in the habeas figures to emerge for backwards, giv- well open avenues for minorities corpus judgement giving short shrift ing an additional argument for more that are today thought of as suspect on to liberty. Subsequently, as noticed reservations. But it also permits col- the ground that government action above, the Supreme Court corrected lation of data that the Supreme Court based on the religion of the citizens is its tilt against liberty. In a parallel has been looking for in vain: how prohibited. exercise it moved beyond Kesava- backward are the backwards? Without nanda Bharati to Minerva Mills and that information, being backward Waman Rao in order to harmonize has become a political identity tag While Article 14 of the Constitution the reading of the two chapters, thus rather than a continuing social condi- speaks of the right to equality and giving a creative and wholesome tion that calls for attention. One only equal protection of laws, Article 21 substance to the basic structure thesis. has to contrast the data that is easily essentially provides the protection of Equality is not an easy subject if available about the number of elected due process. To begin with it was just the writings of John Rawls, Amartya representatives with the opaque pic- that and so long as there was legisla- Sen, Ronald Dworkin, Isaiah Berlin et ture of job share and educational tive backing even preventive deten- al. are any indication. In Sen’s The opportunities. tion was willingly upheld by the courts. Idea of Justice, the author examines Once caste census becomes the However after the self-consciousness the conundrum regarding a flute: order of the day, it should in prin- of the habeas corpus judgement of the should it be given to the poorest child ciple also be acceptable to note the Internal Emergency period of 1976, or to the one who made it or indeed caste of employees in the private the Supreme Court set out to expand to the one who is trained to play it? 38 sector to get comprehensive data on the ambit of Article 21. Right to life We need to discover who gets the phi- employment. But on an alternative has thus become the Right to a life of losopher’s flute before we can hope to view, the census will merely show dignity (Francis Coralie Mullin), the hear the sound of music.

SEMINAR 615 – November 2010 The dalit contract with India V I N A Y S I T A P A T I

IT was a hot May in Delhi in 2009, and the Congress over its drafting, to the listless crowds, patrolled by the blue- reservations and empowerment it capped Bahujan Volunteer force, offers to Scheduled Castes six dec- made up the Bahujan Samaj Party’s ades later.1 Sentences I had heard in pre-election rally in the Ram Lila the careful calibrations of law school, Grounds. Right up front was a large the monotonous baritone of courts, raised platform meant for the media. and the air-conditioned confines of Its scale was ironic as well as inevita- the India International Centre were ble: ironic, because Mayawati has now being taught by a mass politician made a career out of ignoring ‘upper to legions of her unlettered followers. caste journalists’ for misrepresenting I have since wondered about the rela- her politics; inevitable, because in a tionship between the Indian Constitu- general election otherwise too com- tion and Dalit politics. What is the plex for sound bytes, the question: basis of this link in realpolitik; what ‘Will India have its first Dalit woman is its psychological character? And prime minister?’ had a clarifying what does it say about India’s found- elegance to it. On either side of the ing document, that sixty years on, the media platform, and a good 500 metres most prominent space it has in mass from the podium, were her people. politics is in the non-liberal articula- The distance between speaker and tions of former Untouchables? spoken-to conveyed an imperium that First, the obvious. The Cons- went with Mayawati’s politics of dig- titution is used instrumentally to nity. Her rant against the conniving strengthen Dalit representation in Congress, past holder and current politics. Dalits number 16.2 per cent predator of her Dalit vote bank in Uttar of India’s population. Since Article Pradesh, also made sense. 330 of the Constitution guarantees What was puzzling was the that 15 per cent of the Lok Sabha will speech itself. More than half of it was be occupied by Dalits only, they are devoted to details of the Constitution adequately represented in the Lok – from B.R. Ambedkar’s tussle with Sabha. Compare this to Muslims in India, who are roughly 13.4 per cent 1. ‘Dalit’ is a political term referring to of the population, but do not benefit ex-untouchable castes. ‘Scheduled Caste’ is from political reservations. As a 39 a legal term, which excludes Christian and Muslim Dalits. This essay uses both phrases result, Muslim-centric parties (like interchangeably. the Muslim League) are inconsequen-

SEMINAR 615 – November 2010 tial; the percentage of Muslims in first-past-the-post politics. In Uttar same Dalit families – like Kumari politics is far below their national ave- Pradesh, for instance, where politi- Shailja’s – have, in a couple of genera- rage. What makes Dalit politics even cians typically need around 25 per tions, become a political elite. more impressive is that Dalit votes cent of the votes to win, the 20 per cent Beyond individual examples tend to be split. Analyzing Dalit vote Dalit population begins with a head like Kanshi Ram, Mayawati and trends in the 2009 elections, Rahul start over other identity groups fight- Meira Kumar, lies yet another factor. Verma found that rich urban Dalits ing for political spoils. But even in Dalit government employees have tended to vote for the Congress, while areas where tribals are a majority, organized themselves within govern- it was left to the poor, rural Dalits to tribal politics is either fragmented ment, and this organizational structure vote for the BSP. By contrast, Mus- (Chhattisgarh) or mauled (Jharkhand). has formed the nucleus of a larger lims – rich or poor, upper caste or low Besides, reserved seats do not always political movement outside the steel caste – vote tactically for the same benefit Dalit-only parties. In Uttar frame of the bureaucracy. In 1978, party.2 Yet Muslim electoral politics Pradesh, the BJP has consistently won Kanshi Ram formed the Backward is not able to compete with the Parlia- most of the reserved seats. Ajoy Bose, and Minority Communities Employ- mentary quota that the Constitution a political biographer of Mayawati, ees Federation, followed by the Dalit guarantees to Dalits. explains it thus: ‘Since all candidates Soshit Samaj Sangharsh Samithi are Dalits, the Dalit vote is divided… (DS4), which eventually became the the BJP’s Dalit candidate had the political Bahujan Samaj Party. Conversely, reservations alone can- extra benefit of the party’s traditional not explain Dalit political power. Take upper caste base.’4 This is not neces- the Scheduled Tribes, who are the sarily a negative for Dalits: main- Dalit government employee organi- only other group allotted political res- stream parties with Dalit politicians zations and student federations, all ervations in the Constitution. Their can initiate caste compromises of the beneficiaries of constitutional reser- Ambedkar – the Oxford-educated kind Mayawati has recently attempted vations, act as feeders into Dalit par- Jaipal Singh Munda – was a forceful in UP, with her bid to woo that state’s ties or SC/ST cells within national voice in the Constituent Assembly Brahmin community. Political reser- parties – much like the Student Fede- debates. But this has not led to tribal vations provide a platform to Dalit ration of India feeds into the CPI(M), politics reaching anywhere near the politicians for negotiating from a and the ABVP and RSS provide organizational level of Dalit politics. position of strength. young leaders to the BJP. The relation- As Ramachandra Guha points out, ship between Dalit government 60 years after Independence ‘unlike employees and political parties has Dalits, they [tribals] have been unable Political reservations are only one been ill-studied in academia so far. to effectively articulate their griev- half of the bridge that leads to Dalit Anecdotal evidence suggests a potent ances through the democratic and power; reservations in government cycle. Perhaps this example captures electoral process.’3 One major reason jobs (Article 15(4)) and employment it best: Ram Vilas Paswan heads a why Dalits are able to organize better (Article 16(4)) are the other half. Bihar-based Dalit party called the is the shared experience of untouch- Administrative reservations have Lok Janshakti Party. Between 1996 ablity, which connects Dalit jatis scat- helped in two ways. The first is that and 2009, he was a regular feature in tered across the subcontinent. By they have created a Dalit elite whose every union cabinet. He repeatedly contrast, there is little to link tribals members have gone on to stand for won from the reserved constituency of from central India (like Jaipal Singh) political office. Mayawati’s father Hajipur in north Bihar, and once held and tribals from the North East. There was a (reserved) government emp- a Guinness record for winning an elec- are no shared social experiences to loyee, and Behenji nurtured ambitions tion there by the largest ever margin. cause them to vote as a block. of writing the difficult central admin- In 2003, he was invited to speak at a Dalits are also numerous enough istration exam (UPSC) before foray- conference in Berlin, with the banal in several states to benefit from India’s ing into politics.5 Since rich Scheduled title: ‘Dalit politics is here to stay’. Castes can legally avail of quotas, the This is what the veteran Dalit politi- 2. Rahul Verma, ‘Dalit Voting Patterns’, cian had to say: Economic and Political Weekly 44(39), 2009. 40 ‘We could significantly enforce the 3. Ramachandra Guha, ‘Adivasis, Naxalites 4. In conversation with the author, May 2009. and Indian Democracy’, Economic and Politi- 5. Ajoy Bose, Behenji: A Political Biography Presidential Directives to include cal Weekly 45(32), 2007. of Mayawati. Delhi, 2008. proportionate numbers of SCs and

SEMINAR 615 – November 2010 STs in the Delegations going to the heart of contemporary Dalit assertion was propped up by colonial abroad… We could also appoint politics. patronage. But as Independence Mr Birke Ram, as Director Finance To understand this, it is critical approached, Ambedkar’s party faced of the big Railway Public Sector to see constitutional reservations for annihilation from the Congress’ abil- Corporation. Today it is one of the Dalits not as an idea of equality based ity to put up Dalit candidates and win highly profitable PSUs in the coun- on first principles, but as a historic Dalit votes.8 In the 1946 elections, the try… No SC/ST was ever allowed compromise; a result of political Congress could accurately claim to to become the Cabinet Secretary to power play within India’s freedom represent the largest share of the Dalit the Government of India.’ movement. By the 1930s, the British vote.9 The inclusion of Ambedkar in It is telling that his speech was faced two major claimants for nation- the Constituent Assembly, and of the not about electoral politics, but about hood, in addition to the Indian terms of the Poona Pact in the Consti- the nitty-gritty of administrative trans- National Congress. Muhammad Ali tution, were thus welcome steps for fers and postings.6 That was what he Jinnah’s Muslim League claimed to Ambedkar. For the Indian National saw as the true import of Dalit politics. speak for British India’s 20 per cent Congress, the immediate benefit of While the importance of politi- Muslims, while B.R. Ambedkar the Poona Pact was to put an end to the cal participation can’t be understated claimed to represent British India’s idea of a separate Dalit nation. This for any community that faces histo- ‘Depressed Classes’. As Sunil Khilnani might seem trifling today, but as late rical injustice and discrimination, points out, it was in the British inter- as 1940 Ambedkar harboured dreams increased Dalit representation in poli- est to deny India freedom by claiming of a separate country for Dalits. In his tics does not automatically mean that that there were too many discrete book Pakistan or the Partition of Dalit interests are better articulated. Indian groups to form a single, inte- India, he argued that ‘the transfer of Dalit parties like the BSP are not nec- grated nation.7 minorities is the only lasting remedy essarily ‘purer’ than mainstream for communal peace.’10 parties like the Congress, where the necessity to woo Dalit voters has to be Motivated at least in part by this lat- balanced with the impetus to form a ter argument, the British announced, But the most far-reaching implica- pan-Indian majority. The close rela- in 1932, the creation of ‘communal tion of the incorporation of the Poona tionship between Dalit student, occu- electorates’, i.e. separate seats and Pact by the Constituent Assembly was pational, and political formations also voters for Dalits and Muslims. An agi- that the Constitution became the Dalit has its drawbacks. Apart from seeing tated Mohandas Gandhi went on a contract with the Indian nation. That state offices in purely instrumental fast unto death against separate elec- contract is not in sync with the liberal terms, it also makes other forms of torates for Dalits. Faced with intense nationalism that Nehruvian interpret- Dalit identity subservient to the politi- pressure from popular sympathy for ers of India’s Constitution like to cal. Yet, for better or worse, this nexus an ailing Gandhi, Ambedkar compro- extol. It is, instead, a hard-nosed between political and administrative mized, giving up on the demand that power-sharing agreement between reservations has become the hinge on Dalit voters be kept separate, but gain- groups, more in the nature of the which contemporary Dalit politics ing reserved constituencies for the agreement between Christians and swings. ‘depressed classes’. This Poona Pact of Shi’ites in Lebanon or the Constitu- 1932 became the basis for providing tion of post-Apartheid South Africa. reservations to the ‘depressed classes’ Using examples from these two coun- So far I have described how the Con- in the Government of India Act, 1935, tries, Leonard Wantchekon points out stitution has created a Dalit political which in turn, became the template for that power-sharing agreements are and administrative elite who work in the Constitution of India, 1950. necessary for the transition from a tandem, incubating structures in gov- This power-sharing agreement state of conflict to a state of demo- ernment organizations before placing ended up benefiting both Ambedkar them in the rough and tumble of elec- and the Indian National Congress. As 8. Sekhar Bandyopadhyay, ‘Transfer of toral politics. But Mayawati’s May Sekhar Bandopadhyay points out, Power and the Crisis of Dalit Politics in India, 1945-47’, Modern Asian Studies 34(4), 2000. 2009 speech hinted at a psychological from 1916 onwards, Dalit political 9. Id. role of the Constitution, one that goes 41 7. Sunil Khilnani, ‘Arguing Democracy: Intel- 10. B.R. Ambedkar, Pakistan, or the Partition 6. http://www.dalitindia.com/guest/Dalit lectuals and Politics in Modern India’, CASI of India. Bombay, 1940. c.f. Sunil Khilnani, Pol.htm Working Paper Series 9(2), 2009. op cit.

SEMINAR 615 – November 2010 cracy.11 The Poona Pact, that violates into the imagination of its citizens.’13 torical shifts speaks volumes for its notions of formal equality and con- The most famous Dalit totems in elasticity. tributes to what is wryly described as modern India are the blue-suited In the sixty-three years since the Constitution’s ‘asymmetric dis- Ambedkar statues.14 They dot entra- India’s Independence, diverse ethnic, crimination principle’,12 was perhaps nces to Dalit bastis in Indian villages linguistic or ideological groups – necessary to avoid the alienation of and demarcate spaces in urban India whether championing language chau- the Scheduled Castes from the Indian where Dalit politics has gained a foot- vinism in Tamil Nadu, separatism in mainstream. hold. For a group that has been defined Kashmir, or rebellion in the red corri- by physical exclusion, the power of dor – have questioned India’s Consti- these statues comes from their place- tution. Each of these identity groups Wantchekon’s research also shows ment. Mayawati’s statue parks in Uttar benefits from special constitutional that once democracy comes, the Pradesh have the same aim – capture provisions. Linguistic groups, around majority is tempted to renege on the physical space, and in doing so create whom the states were reorganized in power-sharing agreement. It speaks of history for those who have been denied 1956, benefit from the federal provi- the wisdom of the national movement it for centuries. The political symbol- sions of the Constitution. In addition, that in 1950 – when the Congress was ism of the constitutional reservations Article 30(1) provides ethnic, linguis- not only in power in India, but had for Dalits also lies in their placement. tic and religious groups autonomy in trumped Ambedkar for the Dalit vote The Constitution is a mere collection their higher educational institutions. – it resisted the temptation to renege of words, but it aims to map out the Kashmir enjoys relative autonomy on the Poona Pact. The move, instead, geography of Indian nationhood. The through the controversial Article 370; to appoint Ambedkar law minister and symbolism of the constitutional pro- tribal areas have similar rights. But head of the drafting committee had the visions for Dalits is that it carves out these ‘group rights’ can still be justi- symbolic value of sealing the Consti- 15 per cent of this national space for fied within liberal jurisprudence tution in the eyes of subsequent non- Dalits, and in doing so creates the his- – they don’t have anything like the Congress Dalit politicians (even if toric basis for shared nationhood. In slice-of-cake logic that the Poona Pact Ambedkar resigned soon after). Since that sense, its symbolism is similar to ensured. This perhaps explains why then, the Indian Constitution has been that of the Ambedkar statues. Dalit politicians have never criticized amended to provide the same reserva- the Constitution, only interpreted it tion benefits to a numerical majority their way. (Other Backward Classes). The logic Our political landscape has altered of the Poona Pact, meant to protect a since the Constitution was enacted. minority from the vagaries of the The decline of the Congress and the Mayawati ended up on the wrong majority, has been turned on its head. growth of region- and caste-based side of the 2009 general elections; her Yet, reservations for the numerical parties have ensured that in a first- Delhi speech proved to be in vain. Not majority ensure that the logic of the past-the-post-system, Dalits, a signi- only did she win fewer seats than Poona Pact will never be questioned; ficant numerical minority, have expected, she lost out to the Con- reservations for Dalits is unlikely to increased bargaining power. The dec- gress’s resurgence in her home state be withdrawn. line of the Congress has also led of Uttar Pradesh. The Third Front on Benedict Anderson argues that Dalits to vote for other parties. In the which her prime ministerial ambition ‘political symbols play a major part in run up to Independence, Ambedkar’s was tethered, was undone by the Con- the way a nation is depicted and fed party was roundly defeated in the gress and the BJP. Yet while the oppor- 1946 Constituent Assembly elections. tunist in Mayawati has one eye on 11. Leonard Wantchekon, ‘Credible Power- By contrast, today’s Dalit parties tomorrow’s elections, her other eye is Sharing Agreements: Theory With Evidence either win power (BSP) or gain sig- on history. She continues to build sta- From South Africa and Lebanon’, Constitu- tional Political Economy 11(4), 2000. nificant vote share (LJP, RPI). The tues of herself and her Dalit pantheon, 12. Sudhir Krishnaswamy and Madhav fact that the Constitution has allowed continues to sprinkle her speeches Khosla, ‘Reading A.K. Thakur v. Union of and facilitated these electoral and rhe- with references to the Constitution of India: Legal Effect and Significance’, Eco- India. Symbols are for posterity as nomic & Political Weekly 43(29), 2008. 42 14. Nicolas Jaoul, ‘Learning the Use of well as expediency and sixty years on, 13. Benedict Anderson, Imagined Communi- Symbolic Means: Dalits, Ambedkar Statues ties: Reflections on the Origin and Spread and the State in Uttar Pradesh’, Contributions the Dalit contract with Indian nation- of Nationalism. London, 1983. to Indian Sociology 40(175), 2006. hood shows no sign of ageing.

SEMINAR 615 – November 2010 Beyond the social contract R O H I T D E

IN December of 1950, Mohammed descript bystander as the grand narra- Yasin, a young vegetable vendor in tives of Indian history – independence, the small town of Jalalabad in Uttar partition, elections, the integration of Pradesh was faced with a quandary. princely states – play around him. He discovered that the town munici- However, what is striking is that Yasin pality had implemented a new set of became one of the first Indians to byelaws licensing the sale of various present himself before the Indian commodities and had provided only a Supreme Court as a ‘rights bearing single license for the sale of vegeta- citizen’ and both the quandary faced bles in the town area. This license was by Yasin and his solution emerged issued to a Bishamber Pant, granting from this new constitutional order. him a virtual monopoly over the vege- Where did this new constitu- table trade in Jalalabad, thus forcing tional order emerge from? The consti- Yasin and other vegetable vendors to tutional text declares that its source sell their goods after paying Pant a cer- of authority is: ‘We, the people of tain fee. Yasin moved the Supreme India… who have adopted, enacted Court praying for a writ of mandamus and given this constitution to our- directing the town committee not to selves.’ This of course is a convenient prohibit the petitioner from carrying fiction. ‘The people’ had a limited role on his trade. in the drafting process. The text was A writ of mandamus was an authored by members of the Constitu- order issued by a superior court to ent Assembly who were nominated by compel a lower authority or govern- provincial legislatures elected on the ment officer to perform mandatory or basis of limited franchise prior to par- administrative duties correctly. His tition. ‘The people’ had little input in lawyer argued that not only was the the largely oligarchic process of con- new regulation ultra vires of the stitution-making. act which had been framed, i.e. went One could argue that the above beyond the powers of the municipal- interpretation is uncharitable. The ity, but it also violated Yasin’s rights Constitution derived its legitimacy to trade and occupation conferred by from the domination of the Constitu- the Constitution of India. ent Assembly by the Indian National 43 As a vegetable vendor from a Congress, which was at the time minor town, Yasin appears to be a non- India’s largest political party, and seen

SEMINAR 615 – November 2010 as the vanguard of the mass struggle not structured by formal rationality at tion to contempt of court, defamation for freedom. It was the Congress Party all. This explains the failure of the or incitement to an offence.’4 and its leaders who spoke for ‘the state to implement its policies suc- Apart from general commit- people’, and the party’s claim to legiti- cessfully. ments to social and economic justice macy was validated with its resound- The conventional understand- and reducing disparities of income, it ing victories in the first elections held ing is that most citizens remained also contained specific commitments with universal adult franchise in 1952. outside these elite conversations alto- to create a system of social security, But is the legitimacy of a constitution gether, and were puzzled by its terms. enact a uniform civil code for all com- only rooted in the fiction of a social Even though figures like Nehru were munities, redistribute wealth, prohibit contract validated through elections? aware of this and constantly sought to intoxicating drinks and drugs, and The constitutional text indicates how explain the operations of the state and even to ‘organize agriculture and ani- the Constitution sees ‘the people’ but democratic politics to the people, they mal husbandry on modern and scien- how does one capture how ‘the peo- were caught within their own concep- tific lines by improving breeds and ple’ view the Constitution? tual language, and the limitations of prohibiting slaughter of cows, calves intelligibility of English.3 other milch and draught cattle.’5 This This understanding presumes agenda for modernization, industriali- Political scientists writing on the that it is the state which has to bring zation and secularism led to a massive postcolonial Indian state have been people into the conversation. How- increase in the powers of the fede- suspicious of the claim that the Indian ever, constitutional litigation became ral government. The Constitution Constitution ushered in a new order. the way through which people inserted empowered the state to create a ‘com- Drawing on the Gramscian notion of themselves into a conversation with mand economy’ through nationaliza- ‘passive revolution’, they suggest that the state. A bottom up view of the con- tion and regulation. there is a degree of continuity between stitution by its very nature cannot be the colonial state and the Indian repub- captured in the grand sweeping narra- lic despite independence and elec- tives of ‘high politics’ but filters through The new byelaws of Jalalabad were tions. This draws upon the failure of minutiae of individual encounters. a part of this larger move to bring the the postcolonial state to bring about This essay turns to Yasin’s encounter economy under governmental con- the massive social and economic to understand how the constitution trol, where in the interests of raising transformations that it promised.1 enters everyday life. revenue and regulating the market, They argue that the emerging bour- individual rights could be undercut. geoisie that dominated the new leader- The town committee felt that appoint- ship lacked the social conditions to The Indian constitutional compact, ing a single contractor for vegetables establish a complete hegemony over unlike its American counterpart to would be more efficient than dealing the new nation, and entered into an which it is often compared, was not with multiple vegetable vendors. This alliance between an older dominant centred on the question of protecting model of governance was widespread class with only a partial appropriation individual rights from the tyranny of and in 1958, the Law Commission of the popular masses (through elec- the state, but rather sought to empower Report on the administration of justice tions).2 As a result, a gap arose bet- the state to bring about the sweeping observed that ‘the country stagnated ween the elites comfortable with social and economic changes that the for one hundred and fifty years of Weberian rationality and the people Congress-led political struggle had foreign rule, our legislatures are now whose everyday discourses were aimed for. Rights were thus limited, trying to advance the nation in all for instance the right to liberty granted directions. In their zeal to achieve 1. Nivedita Menon, ‘Citizenship and the in the Constitution was subject to per- quick results, they have not infre- Passive Revolution: Interpreting the First missible restrictions ‘in the interests quently enacted legislation interfering Amendment’, in Rajeev Bhargava (ed.), Poli- of the sovereignty and integrity of with the vital and daily functions of tics and Ethics of the Indian Constitution. 6 Oxford University Press, New Delhi, 2008, India, the security of the State, friendly the citizen. pp. 189-211 relations with foreign States, public While the Constitution greatly 2. Partha Chatterjee, Nationalist Thought order, decency or morality, or in rela- expanded the state’s reach and author- 44 and the Colonial World: A Derivative Dis- course? Third World Books, Zed Books, London, for the United Nations University, 3. Sunil Khilnani, The Idea of India. Farrar, 4. INDIA C ONST. art.19, §2. 1986, p. 181 (p. 30). Straus and Giroux, 1999, p. 39. 5. See part IV of the Indian Constitution.

SEMINAR 615 – November 2010 ity, its framers also provided for a The new Constitution, coupled towards the political methods of judicially enforceable Bill of Rights with an expansion of government, led the anticolonial movement. While and brought in judicial review of to an explosion of litigation before the breaking the law and Gandhian civil legislation, ordinances, rules and Indian courts. Art. 32 and 226 con- disobedience could be viewed as administrative action. The move was ferred wide powers to the courts to legitimate means in colonial India, surprisingly uncontroversial, perhaps issue directions to the government. now that India was a postcolonial given the absence of a strong tradition They cost very little compared to regu- independent state based on the demo- of judicial inference with the execu- lar civil litigation which had higher cratic principle of representation tive branch in colonial India.7 court fees. And most importantly, in a through universal adult franchise, judicial system rife with delays, writ such actions were viewed as illegiti- petitions took precedence over all mate by the government. However, This new found judicial power over other cases.11 Before the commence- over time that ‘disorder and the cul- legislative and administrative acts ment of the Constitution, Yasin, a resi- ture of disrespect of law’ became an was revolutionary in many ways. For dent of Jalalabad, could not have integral part of Indian democracy and the first time in the history of India, moved a writ petition against the town no political party can survive today there were wide grounds to challenge committee and would have found it without resorting to the street politics administrative action in the courts. hard to seek judicial redress. and strategies of civil disobedience Not only could it be challenged on the adopted by the nationalists.13 He grounds of rights violations, the High argues that because unlike Europe, Courts were also empowered to issue Those who would argue that the democracy and adult franchise come writs and orders against the govern- founders themselves ensured the pos- to India before the ‘hegemony of a ment ‘for any other purpose.’8 A writ sibility that the citizens could check modern mix of sovereignty, discipli- was a form of relief that could be the states through courts should look nary domination and regulatory power’ issued by a court of law. Prior to the carefully at the behaviour of the was established. commencement of the Constitution, founding fathers when confronted the jurisdiction to issue writs existed with constitutional litigation. Faced only in the three High Courts of Cal- with judicial challenges the Constitu- Chakrabarty makes a distinction cutta, Madras and Bombay and was ent Assembly began to amend the between liberal constitutional politics restricted to persons residing within Constitution to make certain areas and ‘street politics’. However, if we town limits.9 Further, in colonial immune from judicial interference compare Nehru’s attitudes towards India the government was immune within months of inaugurating it. The the street protestors and those who from prosecution. Various indemnity government viewed this litigious challenged his government in court, clauses made it mandatory to acquire behaviour with considerable alarm they would appear to be very similar. the consent of the Governor General and attempted to portray the litigants Both groups were viewed as seeking before the institution of proceedings as vested interests blocking the path to undo the legitimacy of a democrati- against government officials and the of progress. Nehru lamented, ‘We had cally elected government that repre- courts were precluded from investi- found this magnificent Constitu- sented the people, and in the post gation the validity of government tion… which was kidnapped and pur- Nehruvian era the ‘democratic gov- orders.10 loined by lawyers.’12 ernment’ hit back at both suppressing Dipesh Chakrabarty unpacks people’s movements and overturning 6. Reform of Judicial Administration, the idealization of apolitical beha- judicial verdicts and packing the Law Commission of India, 1958, p. 673. viour after independence by examin- courts. The founders who had given 7. Rajeev Dhavan (ed.), Nehru and the ing the attitudes of Nehruvian state citizens the right to challenge state Constitution. N.M. Tripathi, Bombay, 1992, action, were quite perturbed when p. xxxi. citizens actually chose to do so. 8. Art 226 (1) Constitution of India, 1950. 10. For example, S.270 of the Government of India Act, 1950; S.197 of the Criminal Proce- 9. Even this limited power to issue writs was a dure Code, 1898, Sections 16 of the Defence 13. Dipesh Chakrabarty, ‘In the Name of Poli- site of contestation between the colonial gov- of India Act, 1914 and 1939. tics’: Democracy and the Power of the Multi- ernment and the executive, see Lauren Benton, tude in India’, in Dipesh Chakrabarti, Rochona ‘Colonial Law and Cultural Difference: Juris- 11. Reform of Judicial Administration. Law Majumdar and Andrew Sartori (eds.), From 45 dictional Politics and the Formation of the Commission of India, 1958. the Colonial to the Postcolonial: India and Colonial State’, Comparative Studies in 12. Parliamentary Debates, Vol.12, part 2, Pakistan in Transition. Oxford University Society and History 41, 1999, pp. 563-588. col.8832, 16 May 1951. Press, New Delhi, New York, 2007.

SEMINAR 615 – November 2010 What did the possibility of judi- the nation’s highest judicial tri- Thus, information is the critical cial redress offer? It opened up a chan- bunal.’15 capital required to access the Consti- nel of communication with the state I do not mean to suggest that tution. The role played by lawyers in outside the electoral system. This the courts provided a haven for the the spread of this information has been becomes particularly important for people, in fact, both the process and understudied, but the spurt in legal individuals and groups who are under- outcomes of litigation often leave liti- publishing just after independence represented in the political system. As gants worse off than before. However, suggests that Indian lawyers were a Muslim trader in UP, in a district that citizens win almost as often as they making concerted efforts to under- had witnessed both violence and lose, and the sheer unpredictability of stand the new order that had come into migration during the partition, Yasin the process keeps the constitutional being. Lawyers who advised their cli- would have limited political channels promise alive. As E.P Thompson ents to ask for writ petitions were not that he could access. It is not surpris- argues, the essential precondition for acting out of benevolence; like every ing that in the years just after inde- the effectiveness of law was its func- professional group in a capitalist pendence Muslim litigants are tion as an ideology, for which it had society, they were seeking to create over-represented in cases challeng- to display a certain degree of inde- and control a new market for their ing administration discretion. A writ pendence. The fact that the state could services. petition forces a state official to and did lose often in the legal process The process of constitutional appear before court and respond to the kept the Constitution accessible to litigation of course works in two ways. petitioner. A citizen can thus compel popular imaginations. On the one hand, it forces the state to an unwilling state to speak to him. be accountable to the people and, on In Yasin’s case, the town of the other, it requires people to submit Jalalabad was clearly unprepared for Constitutional access in the absence to a state institution (the judiciary) Yasin’s assertion of his constitutional of effective legal aid is uneven, those and become citizens through partici- rights. There was considerable delay with social and economic capital can pation in a constitutional exchange. in hiring a government lawyer, since take greater advantage of the system. Lawyers have often been compared to the municipality had no budget for liti- However, social capital was not robed priests, but when expanding gation expenses, never having dealt always reducible to economic class. the market for their services, they also with legal challenges before.14 Yasin was not a wealthy man. Local become missionaries of the Indian tax records show that his father, republic. Niamatullah had asked to be excused Litigants like Yasin were encour- from paying taxes because it was aged by the attitude of the courts. A difficult to support his household of Yasin’s petition argued that not only study of the Supreme Court in the mid- eight members of the family on an did the new byelaw limit his right to sixties revealed that two thirds of income of Rs 150. Yasin’s decision to carry on trade and business as pro- cases involved some level of govern- go to court was a calculated risk, tected by Art. 19, the town committee ment on one side and an individual or influenced by the fact that the munici- had no authority to impose a fee for the private party on the other side. The pal regulation effectively shut down sale of vegetables. The committee’s government lost 40% of this litigation. his business and that other people in contention that the fee was in lieu of Moreover, in 487 of these 3,272 deci- neighbouring towns had been suc- the vegetable farmers and the custom- sions, the validity of legislation was cessful in bringing similar action ers using the municipalities roads to explicitly attacked by the private party before the courts. Yasin’s petition access Yasin’s shop was summarily to the dispute, and in 128 of these refers to two cases before the High rejected by the Supreme Court, which instances the legislation was held Court and Supreme Court involving held that Yasin could not be charged a unconstitutional or otherwise invalid Muslim traders suing the municipali- fee for the use of a ‘public’ street. It in its entirety. As one researcher ties within the same district.16 The held the new byelaws to be an illegal concluded, ‘few, if any, other govern- fact that both petitions had been suc- imposition that infringed the unfet- ments in the world fare as poorly in cessful improved Yasin’s chances of tered right of a wholesale vegetable encounters with their citizens before success before the courts. dealer to carry on his occupation, trade 46 or business which was guaranteed to 14. Mohammad Yasin v. Town Area Commit- 15. George Gadbois, ‘Indian Judicial Beha- tee, Jalalabad, Writ Petition 132 of 1951, viour’, Economic and Political Weekly 5, him under Art. 19 (1) (g) of the Cons- Supreme Court of India Record Room. 1970, pp. 149-166. titution. Central to this debate was the

SEMINAR 615 – November 2010 ‘public street’ and competing ideas of hundred letters a day asking for relief who had rights over it, the state or that is specific (release from prison), private citizens. to the improbable (claims of marriage How accessible was the lan- to film actresses). The constitutional guage of rights and constitutionalism courts appear to project older idioms, to the world outside the courtroom? of personalized justice being deli- The case clearly had special meaning vered by the durbar. Emperor Jahangir for Yasin and his neighbours. Even had a ‘chain of justice’ hung before before the Supreme Court had arrived his palace gates which any aggrieved at a decision, Yasin’s friends hired subject could pull to demand the Nanu, a dalit town crier, to beat the emperor’s intervention. Mughal deci- drum and announce across Jalalabad sions, like those of the courts, were that there was a case between ‘the pub- both erratic and dramatic. lic and the town, the public has won and the town has lost.’ The town area committee was outraged and wrote to What is the relationship of the Cons- the Supreme Court urging Yasin be titution of India to the Indian people? charged with contempt.17 Given the diverse experiences of As early as 1950, a popular lan- Indian peoples the question is hard to guage existed which could allow an answer, but it is clear that the Consti- individual’s claim against the state tution has evolved in ways that its to be translated as a ‘public claim’ founders did not expect it to, or were against the state. Thus, to paraphrase opposed to, and this change in direc- Hannah Arendt, the constitution tion often came from below. The emerges as a hybrid realm where ‘pri- express provision for judicial review vate interests assumed public signifi- of laws and administrative action in cance.’18 This challenges the neat the Constitution was a radical break compartmentalization of litigation as from the past. It provided an opportu- a form of politics available only to the nity, in a period of expanding state elite. Most marginal citizens forced to power for citizens to force the state to confront expanding state power had engage with them. no choice but to access the constitu- Judicial activism to curb execu- tion, and often use and understand it tive excesses is often attributed to the in ways opposed by the state. judges, but judges are only able to act upon cases when citizens bring them before the court. Constitutional litiga- With the growth of public interest tion often tends to be explained in litigation, the dilution of locus standi terms of conflict between the execu- rules and the introduction of episto- tive and the judiciary or a matter of lary jurisprudence have widened high politics, but at the centre of every constitutional access. Since the early constitutional case are individuals ’80s, the Supreme Court has allowed who are facing-off against the state. individual letters or even postcards to A bottom up view of the Constitution judges to be treated as petitions. While would therefore suggest that the Con- the number of letters that get admit- stitution is not just a document pre- ted as petitions remain minuscule, the pared by an Assembly in 1950, but a Chief Justice himself gets close to a continuous conversation between the citizens and the state. 16. Mohd Hasan v. Notified Area Committee, 47 Kandla; Rashid Ahmad Khan v. Municipal 18. Hannah Arendt, The Human Condition. Board, Kariana, AIR 1950 SC 163. University of Chicago Press, Chicago, 1958 17. The court chose to disregard this request. pp. 34-35.

SEMINAR 615 – November 2010 Constitutional durability S U D H I R K R I S H N A S W A M Y

SOUTH Asian nations have had some The basic structure doctrine is difficulty in maintaining their post- often understood as the key judicial Independence constitutions. Drafted in instrument that has allowed the Cons- the euphoria of decolonization, these titution of India 1950 to endure to its constitutions have been challenged by 60th anniversary. By contrast the revolutions of the political right and reluctance of other South Asian courts left, communal politics and military to adopt the doctrine or its equivalent coups. The Constitution of India 1950, is offered as part of the explanation albeit with around 100 constitutional for the shorter shelf-life of these amendments, is the only constitution constitutions. to survive these onslaughts without a In this paper I explore whether break in application. Bangladesh and the adoption of the basic structure Pakistan have endured several phases doctrine in India is a constitutional of constitutional suspension or repeal. design feature relevant to constitu- The resolution of the ethnic conflict tional endurance and durability in in Sri Lanka partially rests on a revi- India or merely an epiphenomenal sion of the current constitution. indicator of the structural stability of In all these jurisdictions, the Indian political society? Further, does courts have engaged with some ver- the basic structure doctrine enhance sion of a ‘basic structure doctrine’. the stability of the Indian Constitution The Indian Supreme Court has deve- or does it damage these prospects in loped the doctrine into a novel and the long term? These questions are extensive doctrine of constitutional motivated in part by a recent book by judicial review. The Pakistani and Ginsburg, Melton and Elkins titled Bangladeshi Supreme Court have The Endurance of National Constitu- modestly embraced the doctrine in re- tions. This essay begins with an over- cent years to warn future coup plotters view of the arguments in the book and to entrench a democratic order. followed by a brief account of the 48 The Sri Lankan courts have rejected present status of the basic structure the argument that the doctrine applies doctrine in India. I conclude with a to their constitution. brief evaluation of the role played by

SEMINAR 615 – November 2010 the basic structure doctrine in India’s correlated with enduring constitu- tutional text changes with time. The constitutional endurance considered tions is the degree of inclusion. Where Indian Constitution provides for against the arguments in the book. constitutions are drafted and main- three modes of formal constitutional tained by including a wide range of amendment: by ordinary legislation, social and political actors, they endure. by super-majoritarian approval in Par- This book rests on an extensive The drafting history of the Indian liament, and by super-majoritarian empirical study of an original data set Constitution reveals a concerted parliamentary approval and the assent of every constitution written since attempt to accommodate the diversities of one-half of the states. The mode 1789 which is available at the website of religion, caste, gender, region and of amendment depends on the provi- of the Comparative Constitutions language by ensuring diverse repre- sion of the constitution sought to be Project. A review of this data set sentation in the Constituent Assem- amended. reveals that the life expectancy of bly. Further, various constitutional constitutions is 19 years (p. 2). The devices such as recognition of official book seeks to explain the extent to languages, asymmetrical federalism, While on the face of it, it appears which constitutional survival may be minority rights and the right to practice, that the Constitution of India 1950 is explained by design factors as distin- profess and propagate religion has neither too flexible nor too rigid in guished from environmental factors. allowed for the accommodation of practice; it has been amended almost Design factors are those relating to the various group interests at critical points 100 times in 60 years. The flexibility content and drafting process of the in our constitutional development. of the Indian Constitution has often constitution while environmental fac- The degree of inclusivity and been criticized as being the bane of our tors are the national and international accommodation possible in a consti- constitutional system. Academic and circumstances that have an impact on tution rests in part on the political craft political commentators often lament the longevity of the constitution. and the extent of legal and constitu- the incapacity of the government and The design factors identified by tional self-confidence in a society. The the political class to govern in accord- the authors that have a significant challenges in Jammu and Kashmir ance with the constitution as being bearing on the longevity of constitu- and the Naxal problems suggest that the primary motive for the frequency tions are striking in at least two res- the existing asymmetric federal of amendment. pects. First, they partially run against arrangements and intra-state autono- In the light of the evidence and the grain of common assumptions mous zones in tribal areas are inad- argument in this comparative study of about effective constitutional drafting equate responses to these problems. all modern constitutions, the flexibil- and second, they are exemplified by Our ability to recognize inclusivity as ity of constitutional change may well the Indian Constitution. The first fac- a critical ingredient of our constitu- be an important reason for the survival tor that has a significant effect on con- tional success and to respond crea- of the Indian Constitution. The attach- stitutional longevity is specificity. The tively by crafting new strategies of ment to an unchanging constitution authors argue that the greater the level constitutional inclusion will have a appears to be a romantic, but essen- of detail and scope of the constitution, significant impact on the longevity of tially unfounded, aspiration that no the more likely it is to survive. The the constitution in the near future. enduring constitution is likely to Constitution of the United States 1787 satisfy. Moreover, the Indian experi- which is celebrated for its brevity and ence suggests that political struggles emphasis on a few general principles The third design factor that has a find expression in the formal consti- is not a recipe for constitutions that significant bearing on constitutional tution amending process more readily endure. The Constitution of India survival is its flexibility. Flexibility is than in the informal modes through 1950 with 395 Articles and 12 Sched- the capacity of a constitution to res- which a constitution may be changed. ules is among the longest constitutions pond to changes in the environment However, the extent of flexibility in the world and is often subject to through formal and informal amend- embraced by a constitution has to be criticism on this count. However, it ment. Where a constitution is formally balanced by a need to preserve its appears that this constitutional excess amended there is a change in the con- normative character as a higher law is a feature that contributes to its stitutional text. Informal amendment that restrains temporary parliamen- longevity. occurs where a court interprets the tary majorities. 49 The second design factor that constitution in a new manner or the The evolution and practice of the study identifies to be positively popular understanding of the consti- the basic structure doctrine in India

SEMINAR 615 – November 2010 responds to this normative concern to all kinds of extra-constitutional conceptions to operate consistently preserve the sanctity of the constitu- manoeuvring to overcome constitu- with the claim that these norms are tion as a higher law. In this part of the tional limits, it guards against formal being respected. Hence, the court has essay I examine the development and and informal constitutional change. allowed amendments inserting new use of the basic structure doctrine in We now examine the extent to which affirmative action provisions which India and its effect on the flexibility the basic structure doctrine impairs have broadened the scope of the of the constitution. The basic structure the flexibility of the constitution. equality guarantee to the private sec- doctrine was developed by the Indian tor to be consistent with respect to Supreme Court in Kesavananda v. the basic feature of equality (Ashok State of Kerala (AIR 1973 SC 1461) The basic structure doctrine does not Kumar Thakur 2008). where the court held that the consti- invoke higher law or natural law prin- Similarly, the court has tested tutional amending power was subject ciples in constitutional adjudication. and permitted state action in the acqui- to implied limitations – basic features The court has decisively rejected the sition of religious property in the of the constitution. There is a signi- argument that basic features of the Ayodhya dispute (Ismail Faruqui ficant body of literature on the evo- constitution are either natural rights 1994) and the introduction of ‘value- lution and history of the doctrine (or natural law principles) or higher based’ education (Aruna Roy 2002) in (G. Austin 2003, M.K. Bhandari 1993) law principles embedded in our pre- school education. By sustaining state and some recent efforts to evaluate constitutional common law inheri- action that alters contemporary under- and justify the doctrine (S. Sen 2008, tance (Indira Gandhi v. Raj Narrain standing of a norm but is nevertheless S. Krishnaswamy 2009). In this essay 1975 Supreme Court). The method of a coherent version of that norm, the I will not revisit or assess this litera- identifying basic features of the con- court has allowed for a significant ture, or comprehensively survey the stitution relies on the constitutional degree of flexibility to remain in the cases, but instead examine some provisions for support and is best constitution. The inherent flexibility aspects of the doctrine which offers understood as multi-provisional imp- in any model of judicial review that useful insights into the relationship lication that pays attention to our tests state action using basic features between flexibility and constitutional constitutional history and normative of the constitution is confirmed when survival. political discourse. one looks at the standards of judicial This method of interpretation scrutiny in these cases. has been inconsistently applied in The first feature of the doctrine of basic structure cases but there is little basic structure that has received inad- doubt that a careful analysis of prec- Basic structure review assesses equate attention in the academic edent endorses this view as the appli- whether state action ‘damages or des- literature is that the doctrine is no cable law in this field. By confining troys’ basic features of the constitu- longer confined to the judicial review the application of the doctrine to the tion. The damage or destroy standard of constitutional amendments. Over policing of basic features traceable establishes a high level of constitu- the years, the court has extended its use to the Constitution of India 1950, tional injury before the court will inter- of the doctrine to other forms of state the court is advancing a constitutional vene to strike down the state action. action: emergency powers, ordinary doctrine particular to the Indian For example, where Parliament alters legislative and executive action. This Constitution. Hence, it does not deve- the domicile requirements for a can- extended use has transformed the doc- lop a general constitutional theory didate to the Rajya Sabha from domi- trine into a novel form of constitu- about the applicability of basic struc- cile in the state the candidate seeks tional judicial review which is distinct ture review or the existence of basic to represent to domicile in India, it ar- from judicial review for constitutional features of a constitution in every guably alters the character and com- limits on fundamental rights, legisla- jurisdiction. position of the Rajya Sabha (Kuldip tive and executive competence and The identification of basic fea- Nayar 2006). When these modifica- other constitutional provisions. tures of the constitution as abstract tions to the election rules were chal- In the South Asian context, not constitutional norms has important lenged on the grounds that Parliament all threats to constitutional endurance effects on the flexibility it permits had damaged the ‘federal’ character 50 have emerged through the process of and the scope for constitutional of the upper chamber of Parliament, constitutional amendment. As the amendment. Complex norms such as the court did not agree with this basic structure doctrine guards against equality or secularism allow several challenge.

SEMINAR 615 – November 2010 The best manner in which the ment) Act, 1978 with the change in from radical constitutional change. court’s reasoning may be understood political party in power at New Delhi, The basic structure doctrine has is that the federal character of the the latter was abandoned after the exerted some normative force on poli- Rajya Sabha is maintained by two ins- coalition government in power was tical actors and institutions in India, titutional devices: candidates domi- forced to concede that the commission which has kept political imagination ciled in the state and an electoral would operate within the confines of and expectations in check and thereby college composed of members of the the basic structure doctrine. ensured constitutional survival. It is state assemblies. As the state action The introduction of the basic not the argument in this essay that the has only altered one of these institu- structure doctrine institutionalizes a basic structure doctrine as developed tional devices, i.e., the domicile of new design factor that constrains radi- by the Indian courts must be adopted the candidates, the court concluded cal constitutional change in India. The by any other jurisdiction in an identi- that ‘federalism’ was not damaged or courts have stressed that these new cal form. Rather, I would argue that destroyed. The less intrusive standard limits apply only to parliamentary the differences in constitutional text, in basic structure review allows amendment as the ‘people’ may alter history and politics make reckless for minor infractions of the basic fea- the constitution in this comprehensive adoption hazardous to constitutional tures of the constitution to be upheld manner. This recognition of popular survival. and thereby ensures that the cons- sovereignty has not been refined to titution remains flexible enough to qualify the political manner in which permit a wide range of constitutional the ‘people’ may deliberate or act to In the Indian context the basic struc- amendment. radically alter the constitution in this ture doctrine has developed in a manner. To the extent that this popu- sophisticated fashion and is able to lar movement is not constrained by distinguish between permissible and Despite the argument above that constitutional limits, it is an environ- radical constitutional change. Thereby, the basic structure doctrine does not mental and not design factor that it does not choke political energies impose severe constraints on the flex- affects constitutional survival. that seek expression in the constitu- ibility of the constitution, there is no tional text. If this is the case, and the doubt that it imposes some constraints Supreme Court continues to develop on constitutional change. The intro- On the 60th anniversary of the the doctrine in this nuanced fashion, duction of the basic structure doctrine Constitution of India 1950, the over- then the doctrine contributes signifi- has not prevented Parliament from whelming critical reaction to the cantly to our constitution’s longevity. enacting constitutional amendments: constitution’s survival is one of pleas- Further, the Indian constitutional almost 67 amendments have been ant surprise. Most commentators arrangements with respect to cons- passed since the judgment. These complained that our drafters had titutional change suggest a further amendments include minor as well as bequeathed us a poorly designed cons- iteration in the manner in which ‘flexi- significant changes to the constitution titution that was nested in a hostile bility’ is assessed in a comparative such as the introduction of a third tier political, legal and economic environ- constitutional context as a design of government by the Constitution ment. The comparative constitutional factor that promotes constitutional (73rd Amendment) Act, 1993 and study by Elkins and Ginsburg gives survival. the Constitution (74th Amendment) us good reason to revisit these com- Act, 1993. plaints and recognize what design References The constitutional change the factors in our constitution may have T. Ginsburg, J. Melton and Z. Elkins, The doctrine has hindered is any attempt contributed to its longevity. Endurance of National Constitutions. Cam- bridge University Press, Cambridge, 2009. to comprehensively alter the constitu- The Indian Constitution meas- G. Austin, Working a Democratic Constitution. tional framework. The Constitution ures positively against the three Oxford University Press, New Delhi, 2003. (42nd Amendment) Act, 1976 and the design factors identified by the study: Sarbani Sen, The Constitution of India. Oxford constitution of a National Commis- specificity, inclusivity and flexibility. University Press, New Delhi, 2007. sion to Review the Working of the However, the Indian constitutional Sudhir Krishnaswamy, Democracy and Constitution, 2002 are two attempts to experience suggests that while flex- Constitutionalism in India. Oxford Univer- sity Press, New Delhi, 2009. alter constitutional fundamentals. ibility in the ordinary course contri- 51 M.K. Bhandari, Basic Structure of the Indian While the former was largely reversed butes to constitutional survival, young Constitution: A Critical Reconsideration. by the Constitution (44th Amend- constitutions need to be protected Deep & Deep Publications, New Delhi, 1993.

SEMINAR 615 – November 2010 Across the border O S A M A S I D D I Q U E

UNTIL a few months ago, there was the appellate courts, once again very no ambiguity in Pakistan about the similar to the Indian model – looks sound reasons for aborting the idea likely to flounder, even before com- of defining a basic structure for the ing into play. Constitution along Indian lines. The The 18th Amendment intro- matter was done and dusted. The duces several changes to a Constitu- justifications were enunciated with tion that has seen much mutilation at clarity and assurance in various judg- the hands of past dictators. Impor- ments of the Supreme Court of Paki- tantly, it amends the process of stan. That was a few months ago. That appointment of High Court, Federal the court may now commit a volte- Shariat Court, and Supreme Court face is emerging as a clear possibility judges.1 The original 1973 Constitu- in on-going hearings of certain consti- tion left the appointment mechanism tutional petitions contesting the newly for judges of the Constitutional Courts introduced 18th Amendment to the open-textured and potentially liable to Constitution. serious political stalemates between The 18th Amendment is a set of the President and the Chief Justice of various amendments engendering the Supreme Court. Justices of the the widest possible consensus of all appellate judiciary were to be appointed major political parties and achieved by the President ‘after consultation through a year-long and fairly trans- with’ the Chief Justice in the case parent and rigorous engagement con- of the Supreme Court (art. 177), and ducted by a special parliamentary ‘after consultation with’ the Chief committee composed of representa- 1. See text of art. 177(1): ‘The Chief Justice of tives from all such parties. Of particu- Pakistan shall be appointed by the President, lar consternation to various Pakistani and each of the other Judges shall be appointed political and legal commentators is by the President after consultation with the Chief Justice.’ The requirements for appoint- the Supreme Court’s inherent deci- ment of appellate judiciary judges, as laid out sion to admit these petitions in the first in the Constitution, are quite undemanding for place. The court proceedings so far such high offices. Focusing solely on a mini- 52 portend that the 18th Amendment – or mum time period of requisite legal or judicial work experience, they do not touch upon or at least that part of it which amends the attempt to erect a bar for the quality of experi- process for judicial appointments to ence, reputed expertise, aptitude, and intellec-

SEMINAR 615 – November 2010 Justice, the concerned Governor, and Indian Supreme Court judgment of characterized by allegations of politi- the Chief Justice of the concerned Supreme Court Advocates-On-Record cal partisanship and nepotism in these High Court in the case of the High Association,3 the court held that the appointments by the Governor of Courts (art. 193). opinion of the Chief Justice of the Punjab, as well as divided legal opin- Supreme Court has primacy in the ion on the respective formal and process of ‘consultation’. actual roles of different players in the This ‘consultative’ appointment for- appointment process, which further mula ostensibly had four design revealed the shortcomings of the extant flaws: first, it did not envision any Earlier this year, controversy erupted process.6 meaningful role for the parliament once again, this time over the eleva- in the selection of judges except for tion of certain judges of the Lahore the ‘advice’ of the Prime Minister; High Court to the Supreme Court.4 The 18th Amendment replaces this second, given that the executive office The contestants offered varying inter- strained consultative mechanism – was in danger of being a placeholder pretations of whether the Chief wrought with uncertainty and judicial for authoritarian rulers, it made little Justice’s advice in the mandatory con- arbitrariness – with a more inclusive sense, from the point of view of demo- sultation with the President was and transparent two-level process for cratization, to entrench the power of merely recommendatory or of a more judicial appointments to the Constitu- judicial selection in the executive; binding nature.5 It also emerged that tional Courts through Article 175(A).7 third, the inconclusiveness of the there was ambiguity on what precisely It assigns a key role to the judiciary to constitutional language raised the the President was required to do to make all the initial nominations for specter of a ‘chilling effect’ or undue explain and abide by his stance, if in appointment. For the Supreme Court, political pressure on the Chief Justice disagreement with the Chief Justice’s the nominations are to be made by a by the President, or at worst, a pro- recommendation. This revealed, once ‘Judicial Commission’ that is headed tracted deadlock between them; and again, the deep volatility in judicial- by the Chief Justice of the Supreme fourth, the lack of any definition of executive relations injected into the Court. The majority of its other mem- the ‘consultation’ process left much to appointments process by the Al-Jehad bers are senior judges, the minority be desired in terms of transparency Trust case. comprising of legal representatives of and public scrutiny of the selection Another impasse earlier this the executive and senior lawyers.8 criteria. year surrounded judicial appoint- As it turned out, rows over ments in the Lahore High Court. It was Dawn, 14 February 2010. Eventually, the judicial appointments between the Chief Justice of the Supreme Court had his way 2. Al-Jehad Trust v. Federation of Pakistan and two other judges of the Lahore High Courts Supreme Court and the government PLD 1996 SC 324. The Supreme Court were elevated to the Supreme Court instead. erupted during a period of fledgling observed that the ‘relevant Articles in our See Ahmad Hassan and Nasir Iqbal, ‘Govern- democratic transition in the 1990s Constitution relating to appointments in Judi- ment Gives in to Supreme Court’, The Daily ciary with minor variations have been lifted after more than a decade of suppressed Dawn, 18 February 2010. It was apparent that from the Indian Constitution, 1950, and, there- the Chief Justice perceived his recommenda- political activity under General Zia-ul- fore, the factum as to how they have been tions in such a consultation to be more or less Haq. The Supreme Court capitalized interpreted and acted upon in India is relevant.’ of a binding nature, whereas the President saw on a narrow window of opportunity to 3. Supreme Court Advocates-On-Record Asso- things differently, and further that there was ciation v. Union of India AIR 1994 SC 268. also no clarity on how to resolve the situation rule in its own favour, turning once 4. It emerged that despite laying down a ‘senio- if a stalemate emerged between the two. again to Indian precedent in the rity principle’ the Al-Jehad case had not been Another controversy arose at the time on the Al-Jehad Trust case.2 Following the successful in bringing clarity and closure to the appointment of an ad hoc judge to the Supreme various levels of appointment processes. The Court, to which the government was opposed, tual vision and integrity. It may be argued that President and the Chief Justice had different once again citing the Al-Jehad Trust case. though not stated in the constitutional provi- ideas about the nature of consultation between See Nasir Iqbal, ‘Government against appoint- sions, the very aforementioned parameters the two on such appointments. It crystallized ment of ad hoc judges in SC’, The Daily govern the actual appointment process. How- when the President elevated the Chief Justice Dawn, 8 January 2010. The judge, backed by ever, the problem is that there is no way of of the Lahore High Court to the Supreme the Chief Justice of the Supreme Court, was verifying this as the appointment process is Court. The Chief Justice opposed this, citing eventually elevated as once again the govern- also popularly perceived as steeped in mys- lack of consultation with him, which the Presi- ment backtracked. tique. This is both due to the ambiguity sur- dent’s office denied. When the President 5. Neither of the two propounded interpreta- rounding the precise role played by different issued a notification to elevate the said judge, tions of the text that ultimately reduce the role 53 organs of government in nominations as well the Supreme Court promptly suspended the of the President or the Chief Justice into mere as the utter opaqueness of the process to the notification. See ‘SC suspends presidential rubber stamps; or indeed the extant judicial public gaze. orders over judge’s appointment’, The Daily pronouncements on the nature of the requisite

SEMINAR 615 – November 2010 A similar model is introduced dead and dusted notion of a ‘basic potent role played by political parties for the Federal Shariat Court9 and the structure doctrine’ in the Pakistani and various sections of civil society High Courts in the provinces.10 The constitutional framework. Also reju- – elements in the judicial leadership nominations by the ‘Judicial Com- venated is the possibility of a greater imagine in their reinstatement a popu- mission(s)’ are then evaluated and role for Article 2-A of the Constitu- lar mandate for bigger and better final decisions about acceptance of tion. This is quite evident from the things. The underlying popular preju- recommendations made by a ‘Parlia- statements made in court by some of dice against politics and politicians mentary Committee’ comprising of the judges during the hearing of the seems to self-justify this vaulting eight members of parliament, four 18th Amendment petitions.13 That ambition. each from the treasury and opposition this is transpiring at a point in time benches, and two each from both when there is a growing chasm bet- houses of parliament in case of both ween a highly confident (and in some However, if the argument in favour the treasury and the opposition.11 cases belligerent) post-‘Lawyers’ of the ‘basic structure doctrine’ and its Movement’ judiciary and a stuttering use for precluding the parliament from and often hapless post-Musharraf judicial appointments is that politi- It would be naïve to separate the elected government confronting issues cians are tyrants, then the problem is Supreme Court’s often and publicly ranging from a tanking economy, vio- hardly resolved by replacing the tyr- expressed displeasure with the intro- lent extremism, natural calamities and anny of the majority with the poten- duction of Article 175(A) of the Cons- conflated governance challenges, is tial tyranny of a structurally exclusive, titution as potentially egregious to the no coincidence. increasingly insular, and historically ‘independence of the judiciary’ and its unaccountable minority. Leafing alacrity in admitting the aforemen- through Pakistan’s constitutional tioned petitions challenging the 18th It seems the ideal time for mistrust as history, it is clear that tyranny is a Amendment.12 While trying to justify well as for asserting turf. At the same label better suited to de facto military the jurisdiction for adjudicating upon time, the fact that such a weak polity governments that have sometimes the fate of Article 175(A) in particu- could emerge with deliberated and abrogated, sometimes suspended, lar, the Supreme Court is divulging a consensus-based constitutional amend- sometimes revived in a defaced form proclivity to resuscitate the seemingly ments is seen by many as a vindication and sometimes significantly altered of restoring faith in the democratic the nature and tenor – or basic struc- ‘consultation’ between the two, uncontro- process. However, the legislative ture if you will – of the Pakistani cons- vertibly decide the matter. If they did, one buoyancy seems to have stirred wide would not have the growing divide in public insecurity in the recently restored Court of Pakistan to be nominated by the opinion. Furthermore, if one proceeds with the Chief Justice of Pakistan, in consultation understanding that the ‘seniority principle’ is judiciary that perceives Article 175(A) with the two member Judges, for a period of now an accepted constitutional imperative for as the Trojan horse for future politi- two years; (v) Federal Minister for Law and appointment of the Chief Justices in the wake cal foul play with judicial appoint- Justice; (vi) Attorney General for Pakistan; of the Al-Jehad Trust case and subsequent case and (vii) a Senior Advocate of the Supreme law, it remains unclear why it is not applicable ments. That, however, may not be Court of Member Pakistan nominated by to all elevations to the Supreme Court, given all. Still euphoric over the success of the Pakistan Bar Council for a term of two that the essential logic behind this principle is the ‘Lawyers’ Movement’ – a decep- years. to curb ad hocism. Speaking of ad hocism, it tive nomenclature as it masks the 9. Art. 175(A) (7). See pp. 42-43 of ‘Annex- merits probing whether the Article 182 provi- ure E’ of the Parliamentary Report, supra note sion for appointment of ad hoc judges of the 7. Supreme Court and its recent use, rests easily 7. For the text of the 18th Amendment, see with notions of transparency and impartiality ‘Annexure E’ – and for the changes introduced 10. Art. 175(A) (5). See pp. 41-42 of ‘Annex- of appointment. The very word ‘ad hoc’ after through the new Art. 175(A), see pp. 40-44 of ure E’ of the Parliamentary Report, supra note all denotes the possibility of unbridled discre- ‘Annexure E’ – of the official report of the 7. tion and favouratism. Special Committee of Parliament (hereinafter 11. See supra note 7. 6. See, ‘Taseer alleges nepotism in LHC the ‘Parliamentary Report’), available at 12. This has provoked some scathing criticism appointments’, The Daily Times, 24 February http://criticalppp.com/wp-content/uploads/ from local political and legal commentators 2010. See Osama Siddique, ‘A Flawed 2010/04/report_constitutional_18th_amend_ who have serious reservations about the Debate’, The Friday Times, 12-18 March bill 2010_020410.pdf. Supreme Court’s power to question a consti- 2010. It turns out that the actual process of the 8. Id. Art. 175 A (2). The members of the Judi- tutional amendment, and equate the Supreme 54 vetting and nomination of names for appoint- cial Commission are: (i) Chief Justice of Court’s decision to judge the ‘constitutional- ment is far more complex and multi-player Pakistan; (ii/iii) two most senior Judges of ity’ of the Eighteenth Amendment with than would come across from the relevant the Supreme Court; (iv) a former Chief Justice ‘judging democracy’ itself. See for example constitutional provision. Id. or a former Judge Member of the Supreme Khaled Ahmed, ‘Wages of Imitative Activism’,

SEMINAR 615 – November 2010 titutional framework. Moreover, this ciple of the independence of the judi- ful candidates for appointment to the has transpired with the judiciary’s ciary have judicial appointments superior judiciary. In fact, the role own imprimatur upon such whimsical processes that are broad-based and of the ‘Parliamentary Committee’ is and arbitrary ‘constitutional amend- without a decisive role being vested subsidiary to that of the ‘Judicial ments’. No popularly elected govern- in members of the judiciary itself. Commission’ as the former can only ment in Pakistan has ever deemed the disapprove a nomination of the latter extra-constitutional constitutional. through a supermajority of six out of That privilege lies onerously on the India and Pakistan, in this context are eight votes drawn from across the vari- shoulders of the appellate judiciary rather questionable exceptions. They ous political divides in parliament. alone. justify the ‘Parliamentary Committee’ by arguing that questions regarding a judicial candidate’s worldview and The fact that the ‘Parliamentary Com- In more deferential terms, independ- social vision deserve scrutiny and mittee’ may not suggest any names of ent voices in the media and the obser- assessment by the people of Pakistan its own ensures, they submit, that no vant society have been trying to at the widest level of inclusion. The person may be appointed to the Cons- communicate their apprehensions to value of effective participation of titutional Courts without enjoying the the Supreme Court.14 In a separate political representatives in the pro- support of the ‘Judicial Commission’. petition, they have strongly argued cess of appointments, they say, lies in Consequently, they posit, only those that the petitions challenging the new the opportunity to be able to assess persons will be elevated to the Bench mechanism of judicial appointments and provide input with respect to the whose professional competence and introduced by the 18th Amendment as various proposed candidates. Further- character have passed muster both at violative of judicial independence are more, they point out that previous the level of the ‘Judicial Commission’ untenable. Challenging the criticism judgments on such themes too were and the ‘Parliamentary Committee’. levied against Article 175(A), they reflective of competing worldviews Above all, they implore the Supreme emphasize that an overwhelming ma- and visions between equally honour- Court not to open the Pandora’s box jority of constitutional democracies able and professionally competent of ‘basic structure’, if that indeed is the around the world that uphold the prin- members of the appellate judiciary. justification used for striking down Article 175(A) of the Constitution is Article 175(A).15 The Friday Times, 17-23 September 2010; Maryam Khan, ‘Towards a New Hegemony’, an attempt, they plead, by the parlia- As Pakistanis await the The Friday Times, 17-23 September 2010; ment to put in place a process that is Supreme Court’s verdict at this cru- Ejaz Haider, ‘Judicial Dues Ex Machina’, The transparent and aimed at generating cial juncture of the country’s history, Friday Times, 17-23 September 2010; Asad Jamal, ‘Politics of Judicial Appointments’, broad agreement between the various and regardless of its outcome, this is The Friday Times, 17-23 September 2010; stakeholders with respect to success- the closest that Pakistan’s apex court Chaudhry Fawad Hussain, ‘Extraordinary has ever come to embracing some Judgments’, The Friday Times, 17-23 Septem- 14. The author, along with a group of inde- version of the Indian ‘basic structure ber 2010; and Osama Siddique, ‘Wasteland pendent citizens and citizen organizations, of Discourse’, The Friday Times, 17-23 Sep- was allowed to join the on-going proceedings doctrine’. If embraced, this com- tember 2010. vis-à-vis constitutional petitions against the pletely unexpected avatar promises 13. The idea of the possible reintroduction 18th Amendment, through the courts’ accept- to force fundamental changes to the ance of an intervener application. The petition- of the ‘basic structure doctrine’ and a ambit of judicial powers, as also to the ‘grundnorm’ status for Article 2-A is even ers took upon themselves the role of presenting more controversial today as they both carry the a broad based civil society perspective, given relationship between the judiciary and risk of creating and entrenching an all-encom- the acute significance of the constitutional the other two branches of government. passing, over-powerful and unaccountable questions before the court. They attempted to That relationship may unsurprisingly judiciary. For a snapshot of the critique of persuade the Supreme Court to not introduce possible reintroduction of these ideas into the a ‘basic structure theory’ model borrowed be a highly contentious and desta- Pakistani constitutional framework that has from India or one based on Article 2-A of the bilizing one. On the other hand, if been appearing in the Pakistani press see, Pakistani Constitution into the Pakistani Article 175(A) survives, it will be constitutional framework, citing several past Cyril Almeida, ‘Judicial Appointment Process interesting to see whether the decision Under Fire’, The Daily Dawn, 5 September judgments of the Pakistani appellate courts 2010; Salman Akram Raja, ‘Bars to Amend- and a host of additional arguments in support. to cast off a rather cloistered and opa- ment’, The Daily Dawn, 24 June 2010; Salman See Civil Misc. Application by Senator Mir que mechanism for judicial appoint- Hasil Bizenjo & Others in C. P. No. 40/2010 – Akram Raja, ‘Constitutional Conundrum’, ments by Pakistan stirs a movement 55 The Daily Dawn, 25 May 2010; and Osama Abdul Hafeez Pirzada v. Federation of Paki- Siddique, ‘A Flawed Debate’, The Friday stan. Copy on file with the author. towards a reconsideration of its coun- Times, 12-18 March 2010. 15. Id. terpart in India as well.

SEMINAR 615 – November 2010 Selective borrowings M A R Y A M K H A N

IT was only a few years ago that the many scholars and judges agree that leading exporter of constitutionalism it is near impossible to engage an – the Supreme Court of the United increasingly integrated world through States – began to shed its trans-judicial a one-sided export policy.2 xenophobia and embarked upon an Artificial national barriers to the unprecedented course of referring to migration of constitutional thinking and seeking justification from consti- cannot restrict the free market of ideas tutional jurisprudence outside of its in an age of globalization. It is only by national legal boundary.1 Though this evolving a more ecumenical approach aroused intense feelings of constitu- to constitutional comparativism that tional patriotism, attracting conster- tional under the 8th Amendment to impose nation from sections of the judicial capital punishment on criminals aged under 18 and legal fraternity who continue to at the time of commission of the offense. Both judgments relied on foreign jurisprudence to believe in American exceptionalism, justify their substantive positions: the first to cast doubt on the assertion that sodomy is a 1. See, e.g., Lawrence v. Texas 539 U.S. 558 widely condemned practice, and the second to 56 (2003), in which the Supreme Court struck emphasize the need for developing a national down sodomy laws under the 14th Amend- consensus in line with international standards ment, and Roper v. Simmons 543 U.S. 551 in the treatment and punishment of juvenile (2005), in which the court held it unconstitu- offenders.

SEMINAR 615 – November 2010 the world’s most intractable socio- play structural issues of authoritarian- of the substantive meaning of right to legal and political problems can find ism, while admitting important con- life to encompass broader matters of shared and meaningful solutions.3 textual differences between the two.5 social and economic empowerment in Furthermore, in important areas of Francis Mullin;11 its establishment judicial operation, such as the modus of a novel, epistolary jurisdiction in Of course, most other legal systems of judicial appointments and in the Bandhua Mukti Morcha;12 and gene- have been there and done that. South adoption and pursuit of a peculiar brand rally, its reliance on the Directive Asia, particularly, has been no alien to of South Asian ‘judicial activism’,6 Principles of Policy to support and the exchange of constitutional dis- the two countries have followed simi- enhance the procedural and substan- course beyond national boundaries. lar trajectories, certain important dis- tive innovations of PIL, have all found With a shared colonial legal ancestry, tinctions notwithstanding.7 deep resonance in the evolving PIL both India and Pakistan are accus- jurisprudence of Pakistan during the tomed to drawing inspiration, guid- 1990s. ance and countervailing examples The import of social action or public from Britain and various other cross- interest litigation (commonly known jurisdictional sources in good com- as ‘PIL’) into Pakistan from India is a Underlying this constitutional mon law fashion. well-known and oft-quoted illustra- osmosis is the recognition by the Con- In the constitutional traffic bet- tion of constitutional comparativism. stitutional Courts of Pakistan that ween India and Pakistan, however, The PIL movement in Pakistan draws despite the heavy baggage of political one would expect to find more coun- heavily from and rests firmly on the dissension between the two countries, tervailing examples than inspiration, foundations laid down by a string of there must be active and shared solu- given the discordant history of the pioneering judgments of the Indian tions to the common problems of pov- neighbours’ political relations. How- Supreme Court in the 1980s.8 erty, misery and disempowerment ever, interestingly, the Constitutional With the aim of providing direct facing the mass of humanity in the Courts of Pakistan have chosen, more judicial access to ‘little Indians in region, in view of executive and legis- often than not, to emphasize the simi- large numbers’9 for violation of fun- lative failures. larities in the two legal systems and damental constitutional rights, the In practice, in neither India nor their social and political imperatives, Indian Supreme Court’s relaxation of Pakistan has PIL been as heroically and have found themselves in remark- the standing rule and other procedural pro-poor as the philosophy behind its able agreement with India’s effort to niceties in S.P. Gupta;10 its expansion contextualize constitutional values in India, judicial activism has operated in an 5. See, e.g., Ayesha Jalal, Democracy and environment where democratic forces create and reduce the inequities resulting Authoritarianism in South Asia: A Compara- impetus for self-correction and judicial from the individualistic ‘Anglo-Saxon tive and Historical Perspective. Cambridge restraint. In contrast, in Pakistan, judicial outgrowth’.4 University Press, 2004; and Anil Kalhan, Con- activism has, at times, meant encroaching on stitution and ‘Extra-Constitution’: Colonial This is despite the fact that the a fragile, transitional constitutional demo- Emergency Regimes in Post-colonial India cracy, often under attack by larger authoritar- Indian and Pakistani political experi- and Pakistan, Chapter 4 in Victor Ramraj and ian and non-democratic forces, Islamist ences are commonly perceived through Arun Thiruvengadam (eds.), Emergency Pow- imperatives, and depoliticized sections of the ers in Asia: Exploring the Limits of Legality. dichotomies like democracy and populace that habitually malign attempts at Cambridge University Press, 2009. democratic continuity. Furthermore, in Paki- authoritarianism, and secularism and 6. For seminal elaborations on the distinctive stan, the judiciary has been historically viewed Islamism. More nuanced accounts features of the Indian public interest litigation in popular perception as well as specialized reject such stark dichotomies by posit- experience see Upendra Baxi, Taking Suffer- perspectives as a partisan institution aligned ing Seriously: Social Action Litigation in the with military dictators; and post-General ing that both India and Pakistan dis- Supreme Court of India, 1985, Third World Zia-ul-Haq, with right-wing, conservative Legal Studies 107; and P.N. Bhagwati, ‘Judi- forces. Recent years have also displayed an 2. See, e.g., Vicki C. Jackson, ‘Constitutional cial Activism and Public Interest Litigation’, 23 additional distinctive feature between the Comparisons: Convergence, Resistance, Columbia Journal of Transnational Law 561. two countries in terms of the starkly vocal, vis- Engagement’, Comment, 119 Harv. L. Rev. ible and organized Pakistani ‘Lawyers’ Move- 109 (2005). 7. These important distinctions pertain to the unique adoption of the ‘basic structure theory’ ment’ for the restoration of the judges ousted 3. See generally, James Gordley, ‘Comparative in India as the lynchpin of constitutional struc- by General (R) Pervez Musharraf in 2007. Legal Research: Its Function in the Develop- ture and ethos and as a justification for unprec- See ‘The Pakistani Lawyers’ Movement and ment of Harmonized Law’, 43 Am. J. Comp. edented judicial review. In Pakistan, Islam and the Popular Currency of Judicial Power’, 123 57 L. 555 (1995). federalism have been the predominant themes Harv. L. Rev. 1705. 4. Muhammad Haleem CJ in Benazir Bhutto while visualizing any notion of a fundamental 8. See Maryam Khan and Osama Siddique, v. Federation of Pakistan PLD 1988 SC 416. framework for the constitution. Furthermore, ‘The 2005 South Asian Earthquake: Natural

SEMINAR 615 – November 2010 provenance would suggest. Clearly, through an expansion of its original Ever since this so-called ‘third wave’, PIL is as much about providing judi- fundamental rights jurisdiction and a scholars working at the cusp of law cial access and some limited relief to routinized application of suo moto and political science have observed a the disempowered as it is, if not more, powers, adding not insignificantly to global expansion of judicial power. about protecting constitutional – its already massive backlog. The ‘judicialization of politics’ as mainly political – rights.13 Indeed, they call it, or the gravitation of politi- there are innumerable cases in both cal power from popularly elected countries that reveal the capture of This judicial activism is not merely legislatures to judicial organs, has PIL by ‘established interests and the a matter of South Asian judiciaries reverberated in societies as socio- middle and upper classes, often at the aping western legal tradition and ins- politically diverse and as geographi- cost of the disadvantaged.’14 Above titutions. The spread of democratiza- cally dispersed as North America, all, as trends show, PIL has been a most tion, and with that judicial power, was Mexico, Latin America, Western effective tool in the paraphernalia of carried along on the crests of many Europe, Egypt, South Africa, Israel, judicial activism available to judges ‘waves’ of populism around the world Malaysia, Turkey, New Zealand, Aus- of Constitutional Courts to encroach (a metaphor coined by Samuel tralia, and South Asia. Activist judi- upon the purely political and policy Huntington).16 One of these waves ciaries in these regions are involved domains of representative bodies of coincided with the downfall of the dic- in the settlement of overtly political government at opportune moments. tatorships of Western Europe in the issues that impact broader nation- aftermath of the Second World War. building processes.18 Europe’s painful experience with In Pakistan, during the near-decade democratically elected fascist regimes of Musharraf’s government alone, the in the early to mid-20th century led to Constitutionalism – or the idea that Supreme Court took cognizance of a the establishment of constitutional human rights and equality of citizens broad swath of political questions democracies in which judicial institu- in a democracy are most effectively ranging from regime legitimacy, elec- tions were viewed as protecting demo- guarded through a written constitu- toral eligibility, economic policy and cracy from its own excesses. In the tion containing institutional and pro- deregulation, and the constitutionality 1970s, another wave of democratiza- cedural safeguards against the tyranny of executive prerogatives in the context tion swept across Latin America, East- of the majority – has thus been widely of the ‘war on terror’.15 Mimicking ern Europe, and parts of Africa and adopted as a way to seal the basic val- its Indian counterpart, the Pakistani Asia.17 This time, the populist impetus ues of democracy from manipulation Supreme Court accomplished this was in some cases against elected by both authoritarian regimes and autocratic regimes, but in others legitimately elected governments. Calamity or Failure of State? State Liability against unelected military juntas. Constitutionalism has brought judici- and Remedies for Victims of Defective Cons- truction in Pakistan’, (2007) 9 Asian Law, 187, In Pakistan’s first general elec- aries worldwide to the forefront of for an analysis of the growth and development tions in 1970, the country struggled to governance. As the institutions that of public interest litigation in Pakistan. Id. transition from decades of colonial- mediate between the people and their 216-228. style autocracy to a constitutional representatives by preserving consti- 9. The phrase was first coined by the Indian Supreme Court in A.B.S.K. Sangh (Railway) democracy, pinning its hopes on its tutional values, courts have invariably v. Union of India A.I.R. 1981 S.C. 298, and first and only consensus Constitution become key players in constitutional later adapted as ‘little Pakistanis in large num- of 1973 (the ‘1973 Constitution’). issues of public importance, and have bers’ in Darshan Masih v. The State PLD 1990 at times, not unjustifiably, suffered SC 513 by the Pakistani Supreme Court. 15. See Taiyyaba Ahmed Qureshi, ‘State of allegations of making the law and for- 10. S. P. Gupta v. President of India AIR 1982 Emergency: General Pervez Musharraf’s SC 149. Executive Assault on Judicial Independence in mulating policy. Slowly and steadily, Pakistan’, 35 N.C.J Int’l L. & Com. Reg. 485. 11. Francis Coralie Mullin v. The Administra- tor, Union Territory of Delhi (1981) 2 SCR 16. Samuel Huntington, The Third Wave: wave’ has been contested by scholars, but 516. Democratization in the Late Twentieth Cen- it does not take away from the larger point tury. University of Oklahoma Press, 1992. that constitutionalism in South Asia has 12. Bandhua Mukti Morcha v. Union of India more depth than mere imitation or whimsical A.I.R. 1984 S.C. 802. 17. Id. In Samuel Huntington’s chronological scheme, India appears in the ‘third wave’ of politics. 58 13. See supra note 8. democratization along with Pakistan, with 18. See, e.g., Ran Hirschl, ‘The New Consti- 14. See Werner Menski, et al., Public Interest Indira Gandhi’s emergency as the dividing tutionalism and the Judicialization of Pure Litigation in Pakistan. Platinum Publishing line between the pre-democracy and post- Politics Worldwide’, Fordham Law Review, Limited, London, 2000, at 67. democracy eras. India’s placement in this ‘third Vol. 75, 721, 2006.

SEMINAR 615 – November 2010 global constitutionalism has chipped comings of the representative institu- amendment, in purely procedural away at traditional notions of parlia- tions in these countries have had a terms, requires a higher threshold for mentary sovereignty and has ushered considerable role to play in judiciali- passage into law: two-thirds majority in an era of heightened judicial review zation.20 in both houses of parliament (the same along with an increasing conscious- as in the U.S.). In political terms, the ness of constitutional rights. more stringent requirements are indi- Nonetheless, Pakistani Constitu- cative of the greater consensus and tional Courts have so far shown some coalition building demanded of amend- The constitutions of India and Paki- judicial restraint on an important mat- ments to the constitution. It is no sur- stan aim to establish democratic orders ter where their Indian counterparts prise that such amendments, when that are recognizably premised on have arguably, on many occasions, introduced by elected governments, constitutionalism. Both constitutions rejected temperance: judicial review are mostly the result of political accom- contain institutional and substantive of constitutional amendments. The modation and understanding across safeguards against undemocratic rule: ‘basic structure doctrine’ – a purely political parties, and hence political the former are reflected in the express judge-made jurisprudential tool that constituencies, especially in coalition powers of judicial and constitutional allows the Indian Supreme Court to governments trying to find common review granted to the Constitutional strike down a constitutional amend- ground for democratic survival. Courts, while the latter find expression ment on the pretext that it modifies in elaborate bills of rights. The latter the fundamental, underlying structure guarantee the protection of human of the constitution – is perhaps one of Imagine such a broad political con- rights ranging from life and liberty to the highest forms of judicial activism vergence thwarted by a coterie of freedom of movement, speech, asso- in terms of the extent of judicial unelected and completely unaccount- ciation, assembly and religion. In encroachment on legislative and exe- able judges, who have no fear of many ways, the scope of authority of cutive powers. Challenges to cons- re-election and no popular constitu- the Supreme Courts of India and titutional amendments before the ency to answer to. Judicial interven- Pakistan are broadly similar to the Pakistani judiciary since the 1970s tion in such cases can at best offer a United States Supreme Court. All have attempted to transplant the ‘basic divisive and depoliticized short cut to three are empowered to invalidate acts structure doctrine’ – as discussed spe- political problems requiring broad of the legislature because of constitu- cifically in Golak Nath,21 Kesava- participatory political processes. tional violation, and all three play the nanda Bharati,22 and Indira Gandhi23 The Constitutional Courts of exclusive role of mediator in disputes – onto the country’s constitutional Pakistan have thus repeatedly dis- between federal and provincial/state jurisprudence. missed India’s stance on the basic governments. The Constitutional Courts of structure argument on various grounds, However, as even the most Pakistan, however, have never quite starting from the Ziaur Rehman case24 dilettante constitutionalists know, the found grounds for constitutional con- in 1973, all the way up to the Lawyers’ Supreme Court of India has pushed vergence with India on this issue, thus Forum case25 in 2005. These include, out the contours of judicial review to insulating constitutional amendments inter alia, that the basic structure is a an extent unimaginable even by from substantive judicial review. This purely academic doctrine as the cons- the standards of the United States is for good reason. A constitutional titution is mute on its nature or exist- Supreme Court – the progenitor of ence; abstract concepts like ‘national constitutionalism as well as one of the 19. The unabashedly candid observation of aspirations’ cannot negative legisla- most activist judicial institutions in Chief Justice Iftikhar Chaudhry in the highly the world. In establishing virtually controversial Pakistani Supreme Court judg- 20. For a discussion in the context of India, ment of Wattan Party v. Federation of Paki- see Nick Robinson, ‘Expanding Judiciaries: unlimited powers of original jurisdic- stan PLD 2006 SC 697 (Pakistan Steel Mills India and the Rise of the Good Governance tion, particularly suo moto powers, case), epitomizes the activist judicial attitude: Court’, Washington University Global Stu- that have little bases in the constitu- ‘While exercising the power of judicial review, dies Law Review, 8:1, 2009, 1. it is not the function of this Court, ordinarily, tion, the Indian Supreme Court has 21. Golak Nath v. State of Punjab AIR 1967 to interfere in the policy making domain of SC 1643. set precedents that have not found the Executive… However, the process of 22. Kesavananda Bharati v. State of Kerala champions elsewhere. Pakistan and privatization of Pakistan Steel Mills Corpora- 59 tion stands vitiated by acts of omission AIR 1973 SC 1461. Bangladesh appear to be the only and commission on the part of certain State 23. Indira Nehru Gandhi v. Raj Narain AIR exceptions.19 Presumably, the short- functionaries.’ 1975 SC 2299.

SEMINAR 615 – November 2010 tive authority exercised in accordance law’, thundered with a note of final- with the constitution itself; the consti- ity that, ‘the debate with respect to the tutional history of Pakistan, with its substantive vires of an amendment to many constitutional deviations, does the Constitution is a political question not speak of a consistent adoption of to be determined by the appropriate any basic structure; and Indian pre- political forum, not by the judiciary,’ cedents on basic structure are not namely, ‘the normal mechanisms of applicable in the Pakistani context for parliamentary democracy and free the reason that the Indian Constitution elections.’28 provides for a ‘Sovereign Socialist Pakistan has thus experienced Secular Democratic Republic.’26 many and varied reverberations of In- dian constitutionalism over time – some have left a deep imprint in the Attempts to apply the ‘basic struc- constitutional trajectory of Pakistani ture doctrine’ by using Islam as the politics, while others have been con- constitutional ‘grundnorm’ – such spicuous only by their consistent re- that any law found repugnant to Isla- jection. Ultimately, however, the fate mic principles laid down in the Holy of the vast majority of 1.3 billion peo- Quran and Sunnah may be trumped on ple home to this region, living in a state the basis that these principles are a of complete alienation from the super- transcendental part of the constitution lative notions of equal citizenship and – have also been struck down.27 Even constitutional rights, will not be deter- so, if there were any residual doubts mined by the Constitutional Courts. about whether Pakistani constitu- tional discourse could still accommo- date the ‘basic structure doctrine’, In the heady possibility of a judicial they were categorically put to rest in ‘quick fix’ to socio-political issues, it the strong language of the recent Law- is easy to forget that the problems of yers’ Forum case. In that case, Chief the ‘little Indians’ and ‘little Pakista- Justice Iftikhar Chaudhry, loath to dis- nis’, indeed in ‘large numbers’, are far place ‘almost three decades of settled removed from constitutional niceties. The two countries need to establish 24. State v. Ziaur Rahman PLD 1973 SC 49. a much greater traffic of dialogue, 25. Pakistan Lawyers’ Forum v. Federation osmosis and convergence between of Pakistan PLD 2005 SC 719. them through the people and their 26. See, e.g., Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57, Dewan political representatives if they are to Textile Mills v. Federation PLD 1976 Kar. truly uphold the spirit of global cons- 1368, Federation of Pakistan v. United Sugar titutionalism. Mills PLD 1977 SC 397, Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457, Federation of Pakistan v. Ghulam Mustafa rested on the Objectives Resolution, which Khar PLD 1989 SC 26, Sharaf Faridi v. originally formed the preamble to the consti- Federation of Pakistan PLD 1989 Kar. 404, tution but was inserted as a substantive part and Pir Sabir Shah v. Federation of Pakistan of the constitution (art. 2-A) in 1985 by Presi- PLD 1994 SC 738, and Mahmood Khan dent Zia-ul-Haq. In the following years, the Achakzai v. Federation of Pakistan PLD 1997 Supreme Court of Pakistan held that the SC 426. new status of the Objectives Resolution only 27. See, e.g., State v. Ziaur Rahman PLD 1973 called for a harmonious interpretation of art. SC 49, Federation of Pakistan v. Haji 2-A with other substantive constitutional Muhammad Saifullah Khan, PLD 1989 SC provisions, without turning the former into a 166, Shirin Munir v. Government of Punjab, transcendental repugnancy clause to trump 60 PLD 1990 SC 295, Hakim Khan v. Govern- the latter. For the text of art. 2-A, see http:// ment of Pakistan PLD 1992 SC 595, and www.pakistani.org/pakistan/constitution/ Kaniz Fatima v. Wali Muhammad PLD 1993 annex_objres.html. SC 901. Islam-based arguments have mostly 28. See supra note 25.

SEMINAR 615 – November 2010 The judiciary as a resource for Indian democracy U P E N D R A B A X I

A celebratory understanding of the in South Asia and global South gene- Indian Constitution as a robust text or rally, the Indian armed forces have entity that has worked and survived never questioned the constitutional for sixty plus years suggests the idea of India. world-historic importance of the There are indeed many good Indian Constitution as the modern reasons for describing the Indian Con- world’s first postcolonial constitution stitution (IC, hereafter) as an inaugu- which has impacted on many other ral postcolonial form. First, even as it forms that emerged later. It also extols replicates many aspects of the Gov- the fact that the Constitution has found ernment of India Act, 1935, the IC general acceptance with the political creatively modifies the idea of consti- classes, though often grudging the tutionalism by combining four key interpretive supremacy of the Supreme ideas. The Constitution is about gov- 61 Court of Indian (SCI) and, as com- ernance but it is also about social pared with constitutional experiences development and further, about the

SEMINAR 615 – November 2010 pursuit of rights and justice. These ers!) battled endlessly to enact a patible with equal opportunity of four ideas remain in dynamic tension, wish list for Part IV rights, leading access as well as result for all. at times even in contradiction, with T.T. Krishnamachari to warn the Con- This occurs in three broad ways. each other. Governance is grounded in stituent Assembly not to convert the The first mode is the system of reser- the right of the people to adult suffrage Indian ‘social revolution into a dust- vations which prescribes numerical (to contest and to vote at elections); bin’ (see Austin, 1966; Baxi, 1967). quotas for access to education and representation is the key to the idea of This divide between two kinds of state employment, not just for the just governance. The idea of human human rights anticipates the develop- Scheduled Castes and Tribes but also and social development stands enun- ment of the International Bill of for socially and educationally back- ciated in the founding values of the Human Rights via the regimes of the ward classes and ‘other backward Preamble, the Part IV Directive Princi- Covenant on Civil and Political Rights classes.’ While the political state pro- ples of State Policy, and now Part IV-A and the Covenant on Economic, Social, ceeds to identify ‘class’ with ‘castes’, enshrining fundamental duties of all Cultural rights. the constitutional state, especially as citizens: the IC simply insists on the represented by the appellate judiciary, understanding of development as those has had considerable difficulties with plans, processes and policies that dis- The SCI and the High Courts have this conflation. The SCI has thus proportionately benefit the worst-off over time chipped away this constitu- found it necessary both to limit the Indian citizen-peoples. tional ‘Berlin Wall’! Adjudicatory overall quotas to no more than 50% Second, the IC describes Part III leadership now steadily transfers Part and to progressively exclude the fundamental rights as rights to free- IV rights to Part III enforceable rights creamy layers, an act of adjudicative dom – a right to state and law-free – the most notable examples being the leadership fully contested by the spaces. Yet Parliament may by law rights to livelihood, shelter, literacy political state. reasonably regulate or limit these and education, and to environment as rights and this may not be done with- integral aspects of the Article 21 rights out the reasoned cooperation of the to life and liberty (see Sathe, 2002; The second mode is that of consti- Supreme Court. Constitutional reason Baxi, 2001; Fredman, 2008). tutional secularism (see generally often differs crucially from political Fourth, no serious-minded Jacobsohn, 2003; Sen, 2007) which reason influencing the decision to assessment of constitutional experi- while providing all citizens with an restrict basic human rights. A rights ence and development may ignore the equal right to freedom of religious culture thus instituted is always crisis- fact that the IC was written in the holo- belief and practice, restricts it in rela- ridden, putting Parliament often in caust of the Indian Partition. Under- tion to the dominant religious Hindu opposition to the SCI and the peoples standably then, rights of cultural, tradition. ‘Untouchability’ is declared of India in opposition, at times, against religious and educational minorities by the IC as violative of the right to the executive/judicial combine. The often acquire the visage of near-abso- equality of all citizens. The term is question here does not concern merely lute rights. The normative concern for left intentionally undefined but derives the distribution of the law-saying power the human rights of the indigenous its core meaning from the freedom of legislatures and courts but entails peoples is indeed remarkable: the 6th of temple entry and worship by the the contestation about the justness of Schedule of the IC even goes so far as untouchables – a main plank of freedom rights (Baxi, 2010) especially when to suspend state and national legisla- struggle as led by Mohandas Gandhi. the constitutional-haves claim all the tion in favour of preserving the integ- Over the years, the Indian judi- rights and have-nots not even a tattle rity of indigenous law and custom. ciary has interpreted non-discrimina- of basic human rights and freedoms. All this now stands recontemplated tion on the grounds of ‘untouchability’ Third, the IC innovates the dis- by the insistence on women’s rights as as inclusive of right to access to the tinction between rights here and now human rights. sanctum sanctorum as well as to sus- enforceable and those left to the ‘ten- Fifth, and using here Michael tain the claims of Dalit appointment der’ care of elected public officials. In Walzer’s notion of ‘complex’ (rather as head priests in Hindu temples. The the debate over parcelling rights into than Marc Galanter’s ‘competing’) exclusion of menstruating women Part III and Part IV (the social and equalities, one may note briefly the from entering certain Hindu religious 62 economic rights named as Directive ways in which the IC (and adjudica- shrines (such as the Sabarimala tem- Principles), the confounding fathers tive leadership) seeks to render the ple) has been judicially held to violate (since there were few founding moth- ideas about equality before law com- the IC prohibition of immunity from

SEMINAR 615 – November 2010 discrimination on the ground of gen- efforts at creating 33% legislative resource use. Revenues from ‘oil’ rich der and untouchability. reservations for women in Parliament Indian states have not been equit- Babasaheb Bhim Rao Ambed- and state legislatures remain mired ably shared; nor have the regimes of kar conceived equality of opportunity (justifiably, in my view) over whether exploration and exploitation of other beyond the ritual to violent social this should not privilege the most resources such as coal, iron ore, pre- exclusion. The IC, as it emerges from disadvantaged women belonging to cious metals, and forest wealth. This the labours of the Constituent Assem- the most depressed strata of Indian is a large story not narrated here; bly, attacks both forms of exclusion. society. yet this planned failure at equitable The audacious normativity of the resource sharing, though not quite IC not merely declares the practices leading to the indictment of the Indian of discrimination on the ground of L awpersons, and even political Union as causing/fostering distinctive untouchability as constitutionally theorists, study the federal principle, practices of ‘internal colonization’ has illegitimate but also, for the first time design and detail in terms of power- also led to the movements for self- in world constitutional annals, enacts sharing between the Centre (the determination, fuelling the fire of constitutional criminal law (Article Union of India) and the constituent insurgent counter-politics. 17). The Constitution makes it an units of the federation. Even so, under- Even so, the success story of offence to take recourse to such prac- standing this in terms of multi-level the linguistic reorganization of the tices (as well as those offending and multicultural governance has yet constituent states is always worth ‘rights against exploitation’ in Arti- to fully emerge. revisiting, because outside this India cles 23 and 24). The concern about Like most postcolonial consti- would have ceased to exist altogether, empirical efficacy surely remains tutions, the IC furnishes patterns if the suppression of linguistic and cul- important, even as one highlights the of asymmetrical federalism. On this tural identity was elevated as a mas- normative audacity (see as regards register, changes in the political state ter governance principle. In this sense, the pollution-purity enforcing role of have meant a more genuine respect the question of federalism emerges the dominant castes, Rao, 2009; and towards the federal principle. For a at a deeper level in terms of encoding Pratiksha Baxi, 2005). Articles 17, 23 long while the dominance of a single multicultural governance. Multilevel and 24 constitute the bleeding heart political party at the federal level (the governance, now restoring constitu- of Indian constitutionalism. Congress) signified an excessive tional deference to urban and village invocation of the (Article 356) power level self-governance, imbues a new to declare President’s Rule – by dis- future for the IC. The third mode was Ambedkar’s solving or suspending state legisla- All this fully said, we need to imagination of participation as the tures. The growth of regional parties grasp a whole lot better than seems vehicle of complex equality beyond at the state level led to a strident the case the features of asymmetrical ‘reservations’ in public services; as demand for constitutional reform, dis- federalism. This may not be achieved such he sculpted the principles of playing a more sincere respect to by any insistence requiring us to reservations of SC/ST communities states within the Indian Union. It is understand the IC as a monolithic on the representation principle. The only the rise of a coalitional form of edifice. We need to pluralize the idea constitutional right of adult suffrage federal governance that now compels of the IC itself! was qualified as regards the right to this deference. Of note remains of contest (only designated citizens course the subjection of Article 356 belonging to the scheduled castes and power to the discipline of the Consti- India has from the beginning a dual tribes may contest elections at which tution in the Bommai case – federal- constitution – the civil and the mili- all may vote). Although Ambedkar ism being declared as an essential tary. Both are born together and have thought of this as a temporary meas- feature of the democratic republican coequally developed since Independ- ure, it has now become an essential Indian constitutional state. ence. The states of insurgency in the feature of the IC, and even a part of the The redemocratizing role of the North East and Jammu and Kashmir, basic structure. Studies indicate dif- SCI has not fully addressed the dimen- and for a short while in Punjab have, ferent perspectives on how far legis- sions of economic federalism. Neither for example, continued to haunt the lative reservations have worked to the the constitutional nor the political spirit and the letter of Indian consti- 63 advantage of the worst-off among state has been able to address ade- tutionalism. This has been further these communities; and successive quately a just distribution of natural aggravated by the steady, even expo-

SEMINAR 615 – November 2010 nential, rise of armed opposition sovereignty; (iii) the 1973 Kesava- Indian constitutional, and extra con- groups (by whatever name) that now nanda Bharati constitution, a decision stitutional, politics. To grasp this more constitute de facto extra-constitu- that confers constituent power on the conceptually, one needs to explicate tional political formations in one-third SCI, including the power to annul a distinctions between the constitu- of India’s districts opposed to the de constitutional amendment otherwise tional and political state forms. The jure Indian constitutional state. duly made by Parliament; (iv) the state constitutional state (the normative and Without any further elaboration Finance Capitalist constitution pres- aspirational framework enunciating here, it needs saying that Indian aged by the Indira Nehru Gandhi con- the desired social order) is almost constitutional development may not stitution, via the nationalization of always heavily at odds with the politi- be understood outside the multitudi- banks and insurance industries and the cal state (as framework of competition nous Ground Zero thus perennially abolition of the privy purses; (v) the for political power, or even the strug- constituted and the specific practices Emergency constitution of 1975-77; gle to capture the constitutional state). of the Indian wars on, and of, terror. (vi) the post-Emergency constitution In a profound sense then, justices as The militarization of Indian govern- which marks both judicial populism primary articulators of the constitu- ance and politics is a larger story and as well as the emergence of expansive tional state must always be in confron- it is a mistake to think that the 1975-77 judicial activism; and (vii) the Neo- tation with the leaders, agents and Internal Emergency experience marked liberal constitution which redefines managers of the political state. The the beginning and end of the narrative India as a vast global market fully at latter have always insisted on some of constitutional authoritarianism in odds with the first, second, third, or other notion of the ‘committed India. Question marks continue to sur- fourth, and the sixth constitutions. judiciary’. round the judicial and juridical You may wish to say that these redemocratizing potential of the are distinct constitutional ‘moments’, Indian adjudicative leadership, if not by any means many avatars of the With Jawaharlal Nehru, parliamen- only because the SCI has sustained the IC. However, the languages of many tary sovereignty was the norm by constitutionality of dragnet of preven- constitutions alert us more sharply to which the judges were judged; indeed, tive detention, security and now the the nature of discontinuities within the very First Amendment that he anti-terrorism laws (Singh, 2009.) which judicial and citizen interpreta- initiated, in so many words excluded May be, one would wish to say that tion of the IC must occur. judicial scrutiny of laws included in the Indian Constitution and its ways the Ninth Schedule even when they distinguish themselves from some violated fundamental rights. Justice related postcolonial experiences in For example, the post-emergency Hidayatullah was later to describe Asia, Africa and Latin America; if (sixth) constitution may not have ours as the only constitution that so, at the very least, we need to essay occurred outside the legacy of Jaya- ‘needs protection against itself.’ a further comparative understanding, prakash Narayan’s total revolution With Indira Nehru Gandhi what as yet not in sight. movement which mobilized a dis- mattered was the language of the tinctly pro-people understanding of ‘committed judiciary’ – the idea was participatory reform of constitution much the same: the apex justices may Further, alongside with this long- and governance, such as the demand not contest the interpretation of the standing conflict between the civil for proportional representation, reno- Constitution offered by the supreme and military constitutionalism, one vation of Indian police as human executive. When pushed to the wall, needs to trace the seismic shifts that rights friendly structure and process, as it were, Indira Gandhi (and her the Constitution has undergone, so and a right to recall errant and corrupt arch-advisers) said that ‘commitment’ much so that we may not speak of a legislators. However, such move- after all meant commitment to the single Indian Constitution but have to ments are difficult (to say the least) constitution as established by law address a multiplicity of constitutions in the seventh constitution of a neo- (see Austin, 1999). This shred to of India. liberal, hyperglobalizing India.1 pieces the very idea of IC as a ‘higher On my count there are at least In any event, underlying the law’. Indeed, the situation of this sort seven Indian constitutions: (i) the text seven forms are the ways of doing of commitment was well delineated by 64 adopted in 1950; (ii) The Nehruvian an ‘underground’ Emergency period 1. See for a comparative description of the constitution, demanding a compelling impact of globalization on constitutionalism, cartoon which depicts a haughty dis- respect by the SCI for parliamentary Schniderman, 2009. dain by a bookseller who when asked

SEMINAR 615 – November 2010 for a copy of the latest IC admonished panion justices) ought always to fol- titutions mark world-historic contri- the customer to go next door, saying: low their very own understanding of butions. The doctrine of the basic ‘Sir, we do not sell periodicals here.’2 the meaning of constitutional commit- structure of the constitution whose ment. Fortunately, barring a handful essential features may not be amended of pusillanimous personages, the even by a unanimous Parliament (the In case you were to find the distinc- Indian chief justices have steadfastly third constitution) has travelled well tion still unclear, it needs reiteration maintained that even when the inter- to Pakistan, Bangladesh and Nepal, that it is the IC which determines the pretations offered by the supreme contributing to a renaissance of the validity of laws and executive action, executive remain eligible for the high- constitutional state over the intran- and not the other way around. Like it est regard, this may not displace the sigent political state. The SCI has or leave it, the fact remains that the constitutional power and obligation of extended the doctrine beyond its origi- Constitution is what the justices say justices to say what ‘rights’ and ‘jus- nal purpose: it has been held to apply it is. And what matters decisively here tice’ require. In no event is this power to exercises of constitutional powers (for the future of Indian democracy coupled with a duty exhausted by judi- (such as the powers to declare Presi- and of human rights in India) is the cial subservience to regime-favouring/ dent’s Rule over the states) and even powerful idea that justices may not, in fawning adjudicatory leadership, as as a canon of constitutional interpre- deciding the meaning of the IC, follow unfortunately happened during the tation (Krishnaswamy, 2009). the election results. days of the Internal Emergency of Put another way, holders of 1975-77. high judicial powers ought always to Put summarily, if the prime min- It is in the sixth constitution that we elevate the constitutional idea of isters are leaders of the political state, find an implosion of judicial activism, India beyond its regime sponsored the apex justices ought always to most notably via social action litiga- and expedient versions. Justices may remain the custodians of the constitu- tion – SAL (still miscalled public occasionally fail to so do; were they tional state. And it has been India’s interest litigation – PIL.) The SCI to systematically fail to translate high good fortune, overall, that the latter creates a new jurisdiction – the epis- judicial power into a fiduciary power have internalized this obligation. tolary jurisdiction (a process where (as a form of social trust), the very citizens may write letters to SCI which idea of constitutional India would stand treated as writ petitions for the disappear. Adjudicatory leadership is, of course, enforcement of fundamental rights). Still, in the seventh constitution, interpretive leadership, but in my The SCI not merely relaxes the con- the languages of committed judiciary view also includes organizational and cept of standing but radically demo- assume a new visage. In the neoliberal managerial leadership of the judicial cratises it; no longer is it important to India of today, Manmohan Singh system as a whole.3 The interpretive show that one’s fundamental rights constantly urges justices not to cross leadership of the SCI and the Indian are affected to move the Supreme the ‘Lakshman rekha’ between the High Courts is of a very high order and Court or the High Courts, but it making of ‘policy’ and ‘applying’ law. has impacted on the South Asian and remains sufficient to show that one When we recall that this phrase is the some other Global South jurisdictions. argues for the violations of the worst- brand name for killing cockroaches as The third and the sixth Indian cons- off Indian citizens and persons within well, we realize that this rekha (bright- India’s jurisdiction. Other-regarding 3. I do not address this aspect here save to line) metaphor is also intended as a say the following: (1) the district judiciary, concern for human rights has now remedial pest control measure for not the ‘subordinate judiciary’ is the more apt become the order of the day and this judicial activism. description because no judge acting within her jurisdiction may be subordinate to any The Administrative Judge assigned by the Prime ministers often tend to other; (2) the invisibalization of the district Chief Justices of High Courts has considerable think that they are the embodiment of judiciary by the appellate jurisdictions is an role in management and administration of the constitutional patriotism, such that the unfortunate tendency, because the former district judiciary; unfortunately we have no empirical assessment of how successful this chief justices of India (and the com- bears the brunt of justice administration at the grassroots levels; (3) most eminent Justices of ‘project’ is! the SCI – Justices H.R. Khanna and D.A. Desai Most recent advances in pre-service and 2. Indeed, for a long while after the Emergency, (among significant others) – have brought their in-service education at various judicial aca- the Indian print media continued to refer to vast experience district justicing to the High demies do not seem to provide a learning 65 the IC as a ‘statue!’ This habit unfortunately Bench; and (4) for the most part, convictions experience for the appellate justices, who still prevails in the globalizing 24/7 electronic ordered by the district courts and reversed by instead (on my experience) speak to them, media! the High Courts have been restored by the SCI. rather than with them.

SEMINAR 615 – November 2010 concern has prompted a creative part- Kwame Nkrumah as ‘power without situations insisted on human rights- nership between active citizens and responsibility, and exploitation with- based governance. The SCI has dis- activist justices (see Sathe, 2002; out redress.’ In a sense, when the SCI played, in some recent narratives, a Baxi, 2001). and High Courts take cognizance via judicial will to power to combat gov- New human rights norms and SAL of activist petitioners, and as ernance corruption. More may be said standards not explicitly envisaged by much time they take to finally decide concerning this, but one must here the first constitution stand judicially on contestations, they also bestow on desist because of space constraints, invented such as the right to privacy them a measure of immunity from the save that a new form of partnership and dignity, the combined reading of repressive powers of the local politi- between justices and human rights which gives us the recent Delhi High cal state. This aspect is often unfortu- and social movements activists is at Court Naz Foundation decision by nately obscured by studies engaging display under the seventh constitution. Chief Justice A.P. Shah and Justice judicial outcomes concerning con- Muralidhar, which declares as uncon- tested developmentalist projects. stitutional the criminalization of the As one historically privileged to right to sexual orientation and conduct initiate the SAL, and before the notion among consenting adults. Further, the The seventh neoliberal constitution of demosprudence was coined, I SCI brings back into the realm of the may ‘best’ be described as achiev- insisted on saying that the SAL has constitutional state (rights?) features ing this systemic result. The fierce converted the Supreme Court of India often declared to be unsuitable by the essence of neoliberalism, Indian-style, into a court for the worst-off Indian- emerging political state (such as the means a near-complete adjudicative citizen peoples. right to speedy trial, bail, compensa- reversal of the sixth constitution, in ‘Demosprudence’ is an emer- tion for injurious state action or con- which form taking human and social gent and fully contested term of art in duct). This is scarcely an occasion to suffering seriously was understood as US constitutional theory. This rubric narrate the achievements any further a necessary condition for taking at last takes more seriously the finite (see Baxi, 2001 and literature therein human rights seriously. This is no yet complex ‘dialogic relationship referred; and Fredman, 2008). longer the case, and one has only to between the courts and the people’ consider the quarter century old unre- (Guinier, 2008). As happens always dressed sufferings of the Bhopal- with hegemonic modes of production There is no question that judicial violated (see Baxi, 2010a). of constitutional knowledges, the pronouncements of the SCI and High The complete cancellation by notion remains entirely US-centric. Courts have often been ignored by the SCI of its own proud record of Its proponents see no comparative the political state; indeed, how may it protecting minimal human rights of advantage in making any reference to be otherwise? Yet, the SCI has vari- organized and disorganized (a more the imagination and experience of ously deployed its ‘hope and trust’ accurate expression than the ‘unor- transformative constitution-making jurisdiction to persuade the recalci- ganized) workers provides another and development in the Global South trant executive, and when this rheto- sphere of structural adjustment of (Baxi, 2001, Baxi, 1989; see also Ray, ric has failed, taken some determined Indian judicial activism. So do, des- 2010.) In my view this new discursive steps to discipline and punish an pite some rare surviving displays term needs to situate respect for the errant executive. of judicial valour, Indian High Courts non-Euro American others as worthy Even more crucial remains the and even the SCI aided forms of physi- of dignity of discourse. Until the com- constitutional space provided by the cal exile and the symbolic invisibali- parative constitutional theorists begin SCI and High Courts for the practices zation of India’s impoverished (in to lisp the legendary name of Justice of human rights and social movement India’s global cities, poignantly testi- Krishna Iyer, their understanding of activism; this judicial creation of fied by judicial indifference to these ‘demosprudence’ may not even begin space-time for activism has contri- in the run-up to the Commonwealth its itinerary. buted to the growth of staying power Games, 2010). Judging the judges is a favour- of civil society interventions against At the same moment, the SCI ite pastime in India today: everyone the sovereign prowess of the Indian has made some valiant strikes against has something unkind to say about our 66 state which transforms itself from the the regimes of governance corruption justices and in the full knowledge that ‘post’ to the ‘neo’ colonial formation, and regime sponsored mass atrocities they may not respond back to such the latter so acutely described by (as in Gujarat, 2002). It has in both the criticism, outside a difficult recourse

SEMINAR 615 – November 2010 to the contempt of courts law and able to ameliorate the situation in the versity of Delhi, Unpublished PhD thesis; jurisprudence. How far such criticism long run. forthcoming, Oxford University Press, Delhi, 2011. contributes to judicial accountability Upendra Baxi (1967), ‘ “The Little Done, and autonomy is an important ques- The Vast Undone”: Reflections on Read- tion which should engage us all. Overall, the Indian Bar may not ing Granville Austin’s The Indian Constitu- Episodic criticism is plentiful claim to be the best ‘judge of judges’ tion’, Journal of the Indian Law Institute 9, in many public fora: parliamentary without addressing its own patholo- 323- 430. debates on judicial conduct and deci- gies – the endless manipulation of Upendra Baxi (1989), The Indian Supreme Court and Politics. The Eastern Book Co., sions, fully protected by the privileges adjudicative time via adjournments, Lucknow. of Parliament; 24/7 mass media, practices of tutoring ‘witnesses’ (wit- Upendra Baxi (2001), ‘The Avatars of Judi- newspaper editorials and articles; ness-proofing), converting sworn affi- cial Activism: Explorations in the Geography party ‘intellectuals’; social movement davits as forms of client-favouring of (In) Justice’, in S.K. Verma and Kusum and human rights activist constituen- tissue of falsehoods, thus setting at (eds.), Fifty Years of the Supreme Court of India: Its Grasp and Reach. Oxford Univer- cies, and the Bar. Critics of justices, naught the law against perjury, and sity Press and Indian Law Institute, Delhi, however, rarely articulate standards weak self-regulation. The Indian Bar 156-209. by which we may arrive at a socially has no doubt been in the forefront of Upendra Baxi (2010a), ‘Writing About responsible criticism of justices at the exposé of judicial corruptibility, Impunity and Environment: the “Silver Jubi- work – a task presumably reserved yet it has never found a right moment lee” of the Bhopal Catastrophe’, Journal of Human Rights and the Environment 1:1, only for the law academics. So, we end to cleanse its own Aegean stables! pp. 23-44. up with plenty of criticism but no real Judicial corruptibility is an evil that Upendra Baxi (2010), ‘The Justice of Human critique. Some recent outpouring needs combating; but how may this be Rights in Indian Constitutionalism’, in Akash on the Allahabad High Court decision ever fully accomplished outside an Singh and Silika Mohapatra (eds.), Indian on the Ayodhya case illustrates this ethical cleansing of the Indian legal Political Thought: A Reader. Routledge, London & New York, Chapter 17. poignantly, where critics rush to print profession? Sandra Fredman (2008), Human Rights or television, while acknowledging In sum then the tasks that lie Transformed: Positive Rights and Positive that they have yet not had the time to ahead suggest that we all develop Duties. Oxford University Press, Oxford. read the entire judgment. articulate public standards for judging Lani Guinier (2007), ‘The Supreme Court our judges; the public sphere cannot 2007: Foreword: Demosprudence Through be constituted only by traffic of ad hoc Dissent’, Harvard Law Review 22, 4-138. The Indian Bar claims to be a judge opinions. And no judicial reform Gary Jacobsohn, (2003) The Wheel of Law: of judges, an inheritor of the English agenda will ever fructify until the Indian Secularism in a Comparative Context. Oxford University Press, Delhi. tradition. However, it may only fulfil asymmetry of power between justices this vaunted role were the Bar to and the legal profession are at least Sudhir Krishnaswamy (2009), Democracy and Constitutionalism. Oxford University recover its character as a learned pro- minimized. Press, Delhi. fession (marked by self-regulation Criticism of judicial perform- Anupama Rao (2009), The Caste Question: and rectitude) and incrementally shed ance is no doubt an inestimable demo- Dalits and the Politics of Modern Asia. the acquired paradoxical traits of busi- cratic virtue but it is also hard work. University of California Press, Berkeley. ness and trade union of sorts. This Easy-minded criticism of justices at Brian Ray (2010), ‘Demosprudence in Com- means that the market for legal ser- work do not replenish either the Indian parative Perspective’, (forthcoming). vices convert itself away from being democratic future or the future of S. P. Sathe (2002), Judicial Activism in a seller’s market and further that the human rights in India. India: Transgressing Borders and Enforcing Limits. Oxford University Press, Delhi. profession cease to be a very striking ‘profession’ – in the sense that it David Schneiderman (2008), Constitutiona- References lizing Economic Globalization: Investment resorts to strikes, often of long dura- Granville Austin (1966), The Indian Consti- Rules and Democracy’s Promise. Cambridge tion, for all kinds of causes and often tution: Cornerstone of a Nation. Oxford University Press, Cambridge. in the process lowering the dignity of University Press, Delhi. Ronojoy Sen (2007), ‘Legalizing Religion’ the profession and of courts by acts of Granville Austin (1999), Working a Demo- (with commentary by Upendra Baxi), verbal and even physical violence and cratic Constitution. Oxford University Press, Policy Studies 30, Washington DC, East West Delhi. Centre. intimidation. No doubt, the leaders of 67 Pratiksha Baxi (2005), The Social and Juridi- Ujjwal Kumar Singh (2007), The State, the Bar condemn such incidents, but cal Framework of Rape in India: Case Studies Democracy, and Anti-Terror Laws in India. neither they nor the justices remain in Gujarat. Delhi School of Economics, Uni- Sage, New Delhi.

SEMINAR 615 – November 2010 AFSPA: legacy of colonial constitutionalism S A N J I B B A R U A H

WHAT is the state of the republic on against the AFSPA. However, in the its sixty-first year? No assessment can country as a whole the law has had a be complete without consideration of relatively smooth sailing. The public the Armed Forces Special Powers is either uninterested, or they appear Act (AFSPA), a law that has its roots to acquiesce to the government’s in the legal framework of colonial claim that these are circumstances constitutionalism inherited at inde- where security must trump liberty. pendence, and is at odds with the Courts and expert bodies have been democratic rights enshrined in the far too willing to hide behind the 1950 Constitution. It has been in force ambiguity in the idea of the rule of for fifty-two years in Northeast India, law between the rule of substantive and in Jammu and Kashmir for principles, and the notion that any twenty.1 Its controversial provisions governmental action conforms to the are well known. In areas declared ‘dis- rule of law so long as it has formal turbed’ under the act, the armed forces legal sanction. can make preventive arrests, search The AFSPA permits a localized premises without warrant, and shoot form of indefinite emergency rule; and kill civilians. The judicial enforce- but since it is not called that it is ment of fundamental rights is effec- not subjected to the limits that demo- tively suspended: court proceedings cratic constitutionalism seeks to are made contingent upon the central impose on emergencies. The AFSPA government’s prior approval. is a legacy of the ‘routinized use Northeast India and Jammu and of constitutional, emergency-like Kashmir have seen powerful protests executive authority’ that along with explicit emergency powers were 68 1. This essay however, is focused only on among the tools in the hands of the Northeast India – in the pre-2003 sense that excludes Sikkim – and not on Jammu and British colonial state to establish exe- Kashmir. cutive supremacy over ‘the limited

SEMINAR 615 – November 2010 space established for democratic par- out any public debate. The deployment some are in states that the same report ticipation’ during the decades before of the armed forces, the suspension of describes as having had either no vio- India’s independence.2 It is no acci- fundamental freedoms and the ‘spe- lence or very limited violence.5 Even dent that our neighbours Pakistan cial powers’ of the armed forces can in Mizoram, a state that our officials and Bangladesh – also successor immediately come into play. An area often describe as an island of peace in states of British colonial India – both can remain ‘disturbed’ for years on end. the region, and where there has not have some version of the AFSPA. been anything that can be called an The story of how democratic insurgency for more than two dec- India has made its peace with this law Official India treats the AFSPA as ades, the AFSPA remains in force as a raises troubling questions about our normal and routine. Thus the latest ‘sleeping act’6 in Indian bureaucratic postcolonial constitutional culture. A annual report of the Home Ministry parlance. When it comes to governing revamped version of an ordinance describes the ‘disturbed areas’ under Northeast India, viewed as a ‘frontier’ issued in 1942 during World War II to the AFSPA simply under ‘Steps taken by colonial administrators, the pre- deal with the Quit India Movement, by government to deal with the situa- vailing assumption seems to be that the AFSPA appeared on the scene tion in the North Eastern Region.’ The the executive branch needs the flex- relatively early in the history of the summary of the security situation pre- ibility to be able to declare any area as republic. It became law in 1958 when ceding that discussion states that ‘a ‘disturbed’ and use force without Jawaharlal Nehru was prime minister, number of states in the region have having to worry about the fundamen- a time that many view as the golden been witnessing various forms of tal rights of citizens. age of the republic. It provided the insurgency, together with ethnic and legal framework for the armed forces communal violence/tensions in some to engage in counter-insurgency ope- cases.’3 Since these powers are not thought rations against Naga rebels. Northeast As this rather loose use of the of as emergency powers, the question India today has not one, but multiple term insurgency makes apparent, of justification does not come up. The ‘insurgencies’ – including ragtag most armed conflicts in Northeast persistence of the AFSPA then testi- armed bands that stretch the standard India are not mass-based rural insur- fies to a state that is strong in coercive meaning of the term. The law is now gencies that challenge state power capacity, but commands much less in force not only in the areas where it – the focus of conventional counter- governance capacity. At least in was originally introduced – described insurgency theory. Many militant Northeast India, it is hard to argue that at that time as the Naga-inhabited groups are quite unexceptional in the Indian state is what political sci- areas of Assam and Manipur – but it terms of military capacity, political entists would call a strong state. The has been extended to the rest of North- constituencies, or ideological appeal. flexibility vis-à-vis decisions to use east India as well. There are of course, significant excep- tions to this. But the resilience of 4. Bethany Lacina, ‘Rethinking Delhi’s North- east India Policy: Why Neither Counter-Insur- numerous small militias points to fun- gency nor Winning Hearts and Minds is the What is problematic about the damental structural weaknesses of the Way Forward’, in Sanjib Baruah (ed.), Beyond AFSPA is not only the actual violation Indian state that our political class Counter-Insurgency: Breaking the Impasse in Northeast India. Oxford University Press, of rights that occur in ‘disturbed areas’. seems unwilling to acknowledge. New Delhi, 2009, pp. 329-42 and ‘Does Coun- No less troubling to constitutional These armed groups survive by taking terinsurgency Theory Apply in Northeast democrats is the fact that once the advantage of the imperfections in the India?’ India Review 6(3) July-September AFSPA is in force – as it is in all North- rule of law and maintaining ties with 2007, pp. 165-183. 5. Ministry of Home Affairs, Annual Report, east Indian states – the government mainstream actors in politics and busi- 2008-09, pp. 10-13. 4 through a simple notification can ness. These are not exactly charac- 6. The Home Secretary of Mizoram in response declare any area, the entire state, or teristics traditionally associated with to the Jeevan Reddy Committee’s inquiry said parts of the state, as ‘disturbed’ with- powerful guerrilla groups. that in Mizoram the AFSPA was ‘a sleeping Among the ‘disturbed areas’ Act’. He also said that this law had left a scar 2. Anil Kalhan, ‘Constitution and “Extra- on the minds of all sections of the people of constitution”: Emergency Powers in Post- listed in the Home Ministry’s report, Mizoram. Government of India, Ministry of colonial Pakistan and India’, in Victor V. Home Affairs, Report of the Committee to Ramraj and Arun K. Thiruvengadam (eds.), 3. Ministry of Home Affairs, Annual Report, Review the Armed Forces Special Powers 69 Emergency Powers in Asia: Exploring the 2008-09, pp. 10-13. http://www.mha.nic.in/ Act, 1958, 2005, p. 144. Available on http:// Limits of Legality. Cambridge University pdfs/AR(E)0809.pdf (Accessed 29 January www.hindu.com/nic/afa/ (Accessed 3 Septem- Press, 2010, pp. 92, 117. 2010). ber 2010).

SEMINAR 615 – November 2010 coercion and suspend democratic self-regulation as a remedy for human The Reddy Committee defined rights that the AFSPA embodies com- rights violations. its mandate rather modestly: to find a pensates for the lack of those elements Neither the Indian Parliament, middle ground between the ‘security of governance capacity associated nor the Supreme Court, and not of the nation, which is of paramount with strong states. even the Jeevan Reddy Committee importance’ and the rights of citizens. (2004-05) appointed by the Govern- Its report acknowledged that ‘there ment of India to review the AFSPA have been a large number of cases The AFSPA has become so normal- have bothered to carefully examine where those taken away without war- ized that many Indian officials find whether the challenges that the govern- rants have “disappeared”, or ended up criticisms made from a democratic ment faces really require the extraordi- dead or badly injured,’ and proposed rights and accountability perspective nary emergency powers of the AFSPA. grievance cells in districts where the utterly incomprehensible. They accuse In its 1997 ruling on the AFSPA, the army operates. It recommended the critics of being misinformed: alle- Supreme Court did not consider the repeal of the AFSPA, but also the gedly they confuse the fact of the actual working of the AFSPA, and the incorporation of key provisions into AFSPA being in effect, with areas evidence of human rights violations another law, the Unlawful Activities actually declared ‘disturbed’ under presented by the petitioners. The court Prevention Act (UAPA). In effect it the AFSPA. Thus the Governor of addressed the question of the AFSPA’s proposed a significant reform with Mizoram, a retired military general, constitutionality very narrowly, ask- one hand, and took it away with the said in 2007, ‘It is really surprising ing only whether the Indian Parlia- other. The stated goal of this self- that the people have been talking of ment had the competence to make that contradictory recommendation, quite this Act being applicable in whole of law: an extraordinarily thin conception incredibly, was to help ‘erase the feel- North East. Nothing could be more of the rule of law. Human rights vio- ing of discrimination and alienation’ untruthful and damaging than this. lations were not considered relevant among the people of Northeast India.9 The AFSPA is only applicable in parts to deciding the issue. However, even these modest recom- of Manipur, parts of Assam and mendations were not accepted by the Nagaland. It is not applicable to other government because of the dogged states of North Eastern Region.’ A s a critique of the ruling by the opposition of India’s security estab- It appears quite obvious to People’s Union for Democratic Rights lishment. this official that the Indian Army’s (PUDR) put it, in pronouncing the internal mechanisms are adequate to AFSPA constitutional, the court did prevent human rights violations. not deal with ‘the basic fact that the Unlike the nation-wide Emergency Challenges by human rights groups Constitution does not envisage long of 1975-76 that was rationalized in are only attempts to damage the repu- term deployment of the armed forces constitutional terms by a supposed tation of the armed forces. It is a fal- in civilian areas and considers any existential threat to the state, the gov- lacy, says the Mizoram Governor, that armed forces deployment harmful ernment has not found necessary to try the armed forces use the AFSPA indis- to the democratic fabric.’ Nor did it and justify the AFSPA in terms of any criminately. ‘If it was so, there would inquire whether the actual use of existential threat to the nation or the have been a total revolt against such armed forces amounts to providing state. Apparently two technicalities forces… The strength of the armed assistance to civil power. It left out of have been enough to satisfy our leg- forces is in its discipline. Each action its consideration empirical evidence islators and opinion-makers: (a) the is investigated and any violation of showing that the role of the armed AFSPA does not invoke the Consti- rules is swiftly punished within a few forces in ‘disturbed areas’ extends tution’s emergency provisions, and months.’7 It is rare to find a responsi- well beyond that of assisting the civil (b) the armed forces ‘assist’ and do not ble high official in a democracy defend administration. There are ‘dozens of supplant civil powers. However, mul- with such passion the case for military incidents,’ according to the PUDR, ‘of collectors, superintendents of 7. M.M. Lakhera, ‘North East Security’, 8. People’s Union for Democratic Rights, Website of the Government of Mizoram, police, ministers and other high offi- An Illusion of Justice: Supreme Court Judge- Department of Information and Public cials of the civil administration being ment on the Armed Forces (Special Powers) Act, Delhi, 1998. 70 Relations, 10 September 2007. http://dipr. themselves stopped at gun point from mizoram. gov.inindex.php?option=com_ con- 9. Report of the Committee to Review the tent& task=view& id=2447&Itemid=103 entering areas falling within their own Armed Forces Special Powers Act, pp. 75-79, (Accessed 19 September 2010). work jurisdiction.’8 op cit.

SEMINAR 615 – November 2010 tilateral human rights bodies have not India has steadfastly opposed It may well be asked how such a been as easily persuaded. It is hard for the monitoring of the AFSPA regime ghastly tragedy could have been objective observers to see why the by multilateral human rights institu- enacted at all with civilized and AFSPA does not amount to an unde- tions. As recently as March 2009, intelligent human beings at the clared localized emergency regime. the United Nations High Commissio- helm of the administration. Part of ner for Human Rights, Navanethem the blame may be ascribed to the Pillay took up the case of the AFSPA tradition of decision-making by In 1997, referring to the AFSPA, the with Indian officials during her visit precedent inherent in the adminis- Human Rights Committee established to New Delhi. Not surprisingly, she trative processes and inherited from under the International Covenant of failed to get any assurance that the the predecessor government. It was Civil and Political Rights (ICCPR), to government would review the AFSPA generally assumed during the early which India is a signatory, expressed regime. When Pillay raised the ques- years of Independence, that the its dismay that ‘some parts of India tion of the misuse of the AFSPA, British technique of dealing with have remained subject to declaration according to a senior Home Ministry a situation was necessarily the as disturbed areas over many years.’ official, ‘she was politely but firmly correct technique, forgetting that India, in effect, said the report, uses told that the AFSPA is not applicable the circumstances of the situation emergency powers for extended peri- throughout the country. It is only might be entirely different and ods without following procedures effective in areas where terrorists necessitate a totally different spelt out in a Covenant.10 The refe- operate.’ The news report in the approach.13 rence is to Article 4 of the ICCPR that Indian Express was headlined ‘Govt. says, in times of ‘public emergency Snubs UN Official on AFSPA, Human which threatens the life of the nation,’ Rights’, betraying a sense of pride and The decision to introduce the AFSPA states may take measures ‘derogating satisfaction that the government of a can only be understood in the context from their obligations… to the extent resurgent and confident India is able of the resilience in postcolonial India strictly required by the exigencies of to resist the demands of the multilat- of (a) the legal framework of colonial the situation.’11 eral human rights body.12 constitutionalism where emergency In defending the Indian position, and emergency-like powers had a pre- our officials have been careful not to dominant role,14 (b) imperial policing claim that the challenges it faces in How does one make sense of the practices especially the use of the mili- Northeast India meet the Covenant’s long life and the public support for the tary to assist civil power, and (c) in the test of a ‘public emergency which AFSPA in our constitutional demo- specific context of Northeast India, threatens the life of the nation’ or cracy? In 1958, political authorities administrative habits associated with that the ‘exigencies of the situation’ of the nascent republic did not come the imperatives of what colonial offi- require that the security forces have upon the idea of the AFSPA or cials unabashedly called the pacifica- those special powers. Theirs is a designed it fresh in response to the tion of a ‘frontier’.15 circular argument: the AFSPA and the specificities of the challenge pre- During colonial rule, army units legal immunities for security forces sented by the Naga rebellion. A were routinely used to augment the are necessary so long as there are bureaucracy following its standard law enforcement capacity of civil situations that, in the government’s operating procedures simply dusted administrators, when police person- view, require the intervention of the off a colonial era ordinance. The nel could not contain local ‘distur- armed forces. colonial style counter-insurgency cam- bances’. This practice continues in paign that the legislation empowered postcolonial India, Pakistan and 10. United Nations, Human Rights Commit- remains an enduring source of bitter- Bangladesh. In certain situations, the tee, ‘Concluding Observations of the Human ness and mistrust among the Nagas. aid to civil power by the army could Rights Committee: India’. 04/08/97. http:// Policy-makers later came to www.unhchr.ch/tbs/doc.nsf/(Symbol)/ CCPR.C.79.Add.81.En?OpenDocument regret those operations. As Nari 13. Nari Rustomji, Imperilled Frontiers: Rustomji of the Indian Civil Service, India’s North-Eastern Borderlands. Oxford 11. United Nations, ‘International Covenant University Press, New Delhi, 1983, pp. 31-32. on Civil and Political Rights’, 1966. Website who held a number of key positions 14. Kalhan, ‘Constitution and “Extraconstitu- of the Office of the United Nations High Com- during that time puts it: 71 missioner for Human Rights. http://www. tion”,’ p. 116, op cit. ohchr.org/english/law/ccpr.htm (Accessed 12. ‘Govt. Snubs UN Official on AFSPA, 15. I do not develop the third point – the legacy February 28 2007). Human Rights’, Indian Express, 24 March 2009. of the pacification of a frontier – in this essay.

SEMINAR 615 – November 2010 even turn into the imposition of mar- out the difference between the two colonies, it too inherited ‘a host of tial law, and a military commander situations as follows, though it would institutions and laws that repressed could temporarily be in charge of an hardly strike most readers as a persua- political opposition and populist par- area instead of a civil administrator. sive argument for the AFSPA. ticipation.’18 Such situations must be distin- guished from those arising in the These policing practices differ radi- North Eastern states like Manipur, The AFSPA is part of that dark legacy. cally from that of the ideal-typical Nagaland or Assam where the It is significant that our neighbours, modern democratic state that distin- militants not only challenge the Pakistan and Bangladesh, both retain guishes internal from external secu- authority of the State but by their some version of the Armed Forces rity, and the police from the military. composition, strength, aims and (Special Powers) Ordinance of 1942 As sociologist Anthony Giddens puts objectives present a problem which on which the Indian AFSPA is based. it, in modern societies while all forms is spread over a large geographical Indeed the Bangladeshi version is still of law are backed by the threat of the area and is long term in nature. In called the Armed Forces (Special use of violence, ‘the sanction of the situations of the latter kind, the pro- Powers) Ordinance, 1942. Like the use of violence is quite indirect and visions of the Criminal Procedure Indian amendments to the AFSPA that attenuated. Moreover, military power Code would not be adequate. A per- have had to keep up with the names on the whole tends to become rather manent legal provision would be of new states in Northeast India, an distinct from policing power, the one required which permits the army and amendment to the Bangladeshi ordi- turned “externally”, and the other the other Central forces to operate nance has had to accommodate the pointed “internally”.’16 over an extended area and time break-up of Pakistan and the emer- In making the case for the period – of course, consistent with gence of independent Bangladesh in AFSPA, the Reddy Committee’s the rights and interests of the citi- 1971. A footnote to the official version report unwittingly alludes to the zens and the security of the State.17 of the Bangladeshi ordinance now resilience of imperial policing prac- states, ‘Throughout this Ordinance, tices. It points out that in certain the word “Bangladesh” was substi- situations the provisions of the Indian Many postcolonial nations were tuted for the word “Pakistan”.’19 Criminal Procedure Code (CPC) ‘born in crucibles of violence’, in the During the anti-colonial resist- regarding the use of armed forces to words of a historian of Africa. During ance the Indian National Congress aid civil power may be insufficient, the last days of the British Empire, espe- was sharply critical of the coercive making a law more comprehensive cially the period after World War II, apparatuses of the colonial state. But than the CPC necessary. The AFSPA, Caroline Elkins reminds us, there after independence, it abandoned the in its view, fits that bill. were as many as 30 British counter- agenda of reforming those institu- The CPC, it points out, deals insurgency operations. Among them tions. As a result ‘the legal institutions with the use of armed forces to dis- were the wars in Palestine, Malaya, and coercive apparatuses of the state perse unlawful assemblies and the Kenya, Cyprus and Northern Ireland. remained similar to the last stage of procedure to be followed by the armed None of them were ‘low intensity’ ope- colonial rule to the disappointment of forces while doing that. Those provi- rations; they were protracted opera- those who expected a radical overhaul sions are ‘meant to meet situations tions where ‘Britain routinely found of the state.’20 The AFSPA belongs where an unlawful assembly endan- itself in violation of international 18. Caroline Elkins, ‘Colonial Counterinsur- gers the public security’ such as a com- human rights and labor accords, carry- gencies: Britain’s Past and America’s Present’, munal riot. In such a situation the ing out such policies as mass detention Centerpiece (Newsletter of the Weatherhead authority of the state is not challenged. without trial, torture, forced labour, Center for International Affairs, Harvard Uni- However, that is not the case with the extrajudicial hangings, scorched earth, versity) 20(3) Fall, 2006. http://www.wcfia. harvard.edu/misc/publications/centerpiece/ ‘insurgencies’ in the Northeast. To the food denial campaigns, and the like.’ fall06_vol20_no3/feature_elkins.html Reddy Committee, this difference, India became independent before 19. Government of Bangladesh, Website of the apparently, makes the case for the those counter-insurgency operations Ministry of Law, Justice and Parliamentary AFSPA self-evident. The report spells were in full swing. However, there is Affairs, ‘Laws of Bangladesh’. http:// bdlaws.gov.bd/pdf/196___.pdf. Accessed 29 72 ample evidence that like most former January 2010. 16. Anthony Giddens, The Nation State and 17. Report of the Committee to Review the 20. Sudipta Kaviraj, ‘The Post-colonial Violence. Polity Press, Cambridge, 1985, p. 16. Armed Forces Special Powers Act, 2005, State: The Special Case of India’, Critical

SEMINAR 615 – November 2010 firmly to that part of our postcolonial history. While our political class has made its peace with this legacy, those who have lived under the AFSPA have put up a formidable challenge. In many parts of Northeast India, as the Jeevan Reddy Committee discovered, the AFSPA has become ‘a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness.’21 These attitudes towards a law that is a remnant of ‘the nastier aspects of late British imperi- alism’22 among those who have had the misfortune of living under it, would not have surprised our freedom fighters. Irom Sharmila’s fast-unto-death against the AFSPA in a prison in far- away Imphal recently entered its ele- venth year. She is in jail on the charge of attempted suicide, where the bar- baric practice of forcible feedings has kept her alive. On the republic’s sixty- first year the country’s common future demands that we try and understand why to many of our fellow citizens the ‘anti-colonial utopias’ of our free- dom fighters seem to have ‘withered into postcolonial nightmares.’23 This is the least we can do in response to Sharmila’s compelling ‘corporeal challenge’ to the ‘discursive practices of power.’24

Encounters (Web Journal), 2009. http:// criticalencounters.wordpress.com/2009/01/ 19/the-post-colonial-state-sudipta-kaviraj/ 21. Report of the Committee to Review the Armed Forces Special Powers Act, p. 75. 22. Paul Kennedy, cited in Elkins, ‘Colonial Counterinsurgencies’, op cit. 23. David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment. Duke University Press, Durham, 2004, p. 2. 24. Kyra Landzelius, ‘Hunger Strikes: The Dramaturgy of Starvation Politics’, in Diederik Aerts (ed.), Einstein Meets Magritte: Science, Nature, Human Action and Society, Volume VIII: Man and Nature: 73 A World in Transition. Kluwer Academic Publishers, Dordrecht, The Netherlands, 1999, p. 83.

SEMINAR 615 – November 2010 Whither our sovereignty? T E E S T A S E T A L V A D

SIGNIFICANT markers have dotted the six decade long evaluation of con- stitutional governance. For there can be no more effective means of validat- ing Indian constitutional values than creating a yardstick outlining its inher- ent features and then using this yard- stick, not like the proverbial lathi or danda, but a kind of metaphysical, omnipresent marker that helps eva- luate and judge our performance. If our sixth decade were to be marked thus, the Indian national and state executive’s rapacious campaign to grab people’s land in tribal and non- tribal areas, today flanked by Opera- tion Green Hunt and yesterday by its 73 cynical creation of Salwa Judum in Chhattisgarh, would surely head the

SEMINAR 615 – November 2010 checklist. Land grabs by the state and the legal fraternity, that body of the the other way. All who felt that what corporates, however, is happening Bar that ought to be the soul for demo- was happening was wrong, stepped in as systematically outside this zone cratic conscience in the country. and said so. Why not today? too with states like Orissa, Gujarat, Krishna Iyer in his epic piece has When moves were made to Jharkhand, Maharashtra and Andhra called this a moment that comes but transgress on our democratic founda- dotting the list. Key issues of funda- rarely in the democratic history of a tions in the seventies, mighty voices mental rights, adherence to the letter nation. It is a moment that we can were raised, voices that shook the and spirit of the Indian Constitution ignore to our Constitution’s peril. edifices of power forcing them to look matter here, not least because Sche- down below them and step back a dule V that protects lands in tribal pace or two. If there is one great tra- areas from any incursion, deal or MoU We have had in the past sixty years gedy today it is the absence of the without first navigating a process of moments and periods when constitu- established successful voice of the grassroots concurrence and sanction, tional governance has been tested legal luminary, that upholder of the has been systematically transgressed. to its limits. Brazen attempts by the bastion of the Constitution. Little executive to ensure compliance to wonder that the contract between government included efforts to put the pillars of Indian democracy that The second marker would be that in place a ‘committed’ judiciary. Two appears today in place is not one of of corruption, rather rapacious unac- years before the Emergency was principle but expediency. countability in both the political class, declared, the government of the day, corporate India, the media and our in an act that came to represent the judiciary. The judiciary is often con- worst ever incursion of the executive Constitutional governance and sidered that last bastion of a demo- into the independence of the judiciary, adherence to principles of fair, non- cracy which, when transgressed upon superceded Justices Shelat, Hegde discriminatory and accountable gov- and attacked, can signal the beginning and Grover for the office of the Chief ernance need to be the baseline of the end. Contrast this belief to the Justice of India. Debates in that his- non-negotiables for the institutions of eerie silence that has greeted the bomb toric decade before and after the democracy put in place to uphold thrown by the Bhushans, Prashant and Emergency revolved around how far them. The legislature and our repre- Shanti, on the Indian democratic land- the government should, must and did sentatives at the state and national scape. go, and how ill that process boded for levels need to be the repository of Though it was the feisty Tehelka constitutional governance. these principles; vocal articulation interview that set off this journey, A precious volume of protest of equality and non-discrimination with one of the Supreme Court’s most articles collected in a volume, A (albeit in non-threatening and even- senior and favoured counsel rushing Judiciary Made to Measure, with a handed voices) is their fundamental to the court stating that a very state- foreword by Jayprakash Narayan function and duty. Any articulation of ment about corruption in the judiciary contains insight from a veritable individuals from the political class was contempt of that institution, the galaxy – M.C. Setalvad, K. Subha whom we elect on the ongoing Opera- news after making headlines stands Rao, M. Hidayatullah, J.C. Shah, tion Green Hunt, except for rare and carefully suspended somewhere in C.K. Daphtary, H.V.R. Iyengar, isolated exceptions, has not chal- the stratosphere of public conscience. N.A. Palkhiwala and A.G. Noorani. lenged the Indian state’s unleashing of One article by the redoubtable Justice This is a valuable reference reader military and paramilitary on its own V.R. Krishna Iyer in The Hindu, for those interested in our failure to people. Or, as importantly, questioned a panel discussion on CNBC, and ensure constitutional governance. the absence of primary and secondary Outlook’s cover story are some excep- More than reading the short protest schools, health centres, electricity and tions. articles, over and over again myself, even communication facilities or Our television channels that I am amazed at the list of luminaries roads in these areas. have played and replayed the Com- who stepped in and spoke up to save Individual politicians from the monwealth Games story to distrac- our democratic skins. The bastion Left, the Congress, even the BJP, who tion, have quickly and quietly turned of Indian democracy was not left have articulated this undemocratic 74 over the page attempting to orches- to only a feisty father-son duo, with form of governance, have fallen by trate public amnesia on this issue. other eminent members of the the wayside, isolated by their organi- Worse has been the response from Supreme Court bar politely looking zations and structures over whom

SEMINAR 615 – November 2010 more basic instincts govern. It is for largest religious minority after the however belatedly, in our media. It this reason that governments – central mass arson at Godhra has deliberately is Indian corporate giants, no less and state – appear to be collectively let off those policemen who enjoy unscrupulous in striking this unholy participating in a paradigm of govern- political patronage in the state. All alliance with the political class, that ance that is, at its most basic level, this and more has been brought before have so far escaped lightly. transgressing on the basic rights of India’s apex court that has so far made individuals – the right to life, the right no significant observations about the to equality, the right to equality before absence of catholicity in the investi- Though the Left bastion was made the law – which are the inherent prin- gations. the repeated media focus of cynosure ciples of the Indian Constitution. For the Godhra trial wherein the when the violence at Singur and investigators were mandated to look Nandigram took place, the causes of afresh at charges of manufacturing our farmer’s anger at the land take- Understanding transgressions of of the chargesheet by the Gujarat over, especially after Nano moved to the law often require a tedious pro- government, the Supreme Court Gujarat, were cleverly sidetracked. cess of understanding and enumerat- appointed team has swallowed – hook, Gujarat escapes any comparable or ing procedure that can then stand line and sinker – the shaky prosecu- strident media scrutiny especially the test of having violated lofty and tion thesis forwarded by a state intent when it comes to unscrupulous deve- real life principles of fair and non- on proving the crime before inves- lopment. One reason is that today, discriminatory governance. Principles tigations were completed. None of apart from the Ambanis, it is by the of equality and equality before the law those accused of arson in the Godhra mai baap of the Indian corporate – fundamental and lofty principles of train burning have been granted bail world, Ratan Tata of the Tatas, who constitutional governance – need to be while those mass murderers who has thrown the weight of the prestig- tested against this checklist of trans- enjoy political patronage in Gujarat ious Tata corporation behind the gressions. Land grabs in forest areas are free on bail even today. There can makeover of the man and his party are in some sense being monitored by be no truer example of discriminatory responsible for a state sponsored the Supreme Court in a petition that deliverance of justice than what is cur- mass carnage in 2002. stretches back a decade, for which an rently underway in Gujarat. Silence The Tatas move to Gujarat, amicus has been appointed. But where from the legal fraternity echoes after being granted farming land in delays take place, often no media through the corridors, a silence that Sanand near Ahmedabad in 2008, scrutiny is offered. The Forest Act signals a reluctance to expose brazen without due process of law in the was enacted by the last government to transgressions of procedure and con- acquisition of the land, was made ensure that land is given to tribals to tent of constitutional governance. worse by the state government’s lure ensure both their rights and the protec- of a near interest free Rs 9,500 crore tion of forest lands. In how many loan repayable after two decades, at states has such land been given to Linked to the fashion in which lands the Gujarati taxpayer’s expense. The tribals? Does the media look into this are being seized by governments Ahmedabad edition of the Times of process? after lucrative deals with corporates India exposed this unholy contract Similar is the story of investiga- have been struck are not restricted to by printing the MoU in November tions into allegations of mass murder tribal lands. Neither are these trans- 2008, after which the story and the and criminal conspiracy in Gujarat. gressions of the Indian Constitution issue died a silent death, not making The high powered team appointed by and law the calculated folly of one it to the lofty pages of our economic the Supreme Court is turning a blind political party alone. It is the cross- or business journals, let alone our eye to the obvious complicity of high- party nexus, or syndicate of benefici- media commentators. level police and administrative offi- aries across parties, that has made this A significant beneficiary of the cials, ignoring documentary evidence transgression tantamount to a ganging state’s largesse, it is little wonder that like police control room records, sta- up of the political class against the the formidable corporate giant, the tion diary entries and the like. The Indian people. Orissa, Maharashtra, Tatas are today a stakeholder in pre- investigation being watched by India’s Chhattisgarh, Jharkhand, not to forget serving the public image of the gov- apex court into the whys and where- West Bengal and Gujarat. Interna- ernment, even if that means actively 75 fores of the calculated massacre of tional companies – Posco, Vedanta, participating in subverting constitu- 2,500 innocent members of India’s etc. – have received some coverage, tional governance. Farmers in Sanand

SEMINAR 615 – November 2010 have alleged the illegal takeover of that they have given up. Leaving cations received under the Forest land and the destruction of land Delhi eighteen years ago, they made Act for over one lakh acres of land by records to enable a smooth takeover. Dantewada their home and watched, tribals for ownership of their land, In neighbouring Maharashtra, a rivet- on 17 May 2009, the ashram that was have been rejected. Meanwhile a ing farmer’s movement has succeeded their home being attacked and burned staggering one lakh hectares have in keeping Dow Chemicals, a com- down by a cocktail mix of central and been awarded by the Gujarat state to pany that took over Union Carbide state security forces. It is difficult to a media house. after the Bhopal gas killings of believe that a couple dedicated to a 1984, from taking over the land and life of commitment that could bring resources. some food, medicines, accountability Our Members of the Legislative and transparency to the hundreds of Assembly (MLAs) and Members villages around, are a security threat of Parliament (MPs), barring some The Gujarat state’s liberal favours to the Indian state. It is virtually notable exceptions, and there are a to corporate giants have saved crores impossible that what happened to few, have failed in their primary role of rupees in duties for the textile Himanshu and those with and for of upholding the Constitution. The sector to son of the soil Dhirubhai whom he was fighting for justice in executive wing, the government itself Ambani since the late nineties when the courts (including an eight month – central and state – be it Chhattis- politics changed forever, ending the old child who’s three fingers were garh, Maharashtra, Orissa or Gujarat, Congress’ unquestioned rule since chopped off), happened without the appears to be on the same page. The independence. Political favours trans- full-fledged concurrence of the cen- contract is not a social one, to uphold lating into uncalculated money power tral government and the state govern- the principles of equality, equality be- that has been the stuff of legendary ment in Chhattisgarh. fore the law and non-discrimination, journalistic and political gossip, have Himanshu’s story is only fleet- but a calculated one made more sinis- rarely made it to research or economic ingly told and heard. Recently he ter because it has not been put up for and political commentary. A third cor- embarked on a cycle yatra through transparent, democratic scrutiny. In porate heavyweight in the state of several Indian states, spending from the absence of transparency from gov- Gujarat, a relative newcomer that has 19 August until 8 September 2010 in ernment, it appears to be a dangerous risen in the power pyramid, the Adani Gujarat, moving across tribal areas ploy to sell Indian common resources, group, is also the chief beneficiary of examining the non-implementation land and minerals in the villages, and the western Indian state’s policy of of the Forest Act. Entering the state land in the cities, to the highest bidder. concretizing a significant percentage at Shamlaji in Sabarkantha and tra- At moments of such democratic cri- of its vast coastline, questioned by versing Panchmahals and Dahod, he sis, that only leaves us with the crucial environmentalists and seasoned was finally forcibly ‘evicted’ from third pillar of parliamentary demo- developers as a potential hazard of Dharampur in Vapi district when the cracy, the judiciary. unspeakable dimensions. state did not find such mobilization Where have our courts stood on State power in that state is being in its interest. their primary mandate of upholding powerfully backed by hard corporate the principles of equality before the influence and money, a factor that also law, in a timely and real sense for helps tip the balance of democratic Narrating figures collected by a the people? In a historic verdict, the (sic) power! Media stories on Gujarat, former MLA from the tribal constitu- Salwa Judum, a central-state spon- therefore, only surreptitiously creep encies, Mohansinh Rathwa, who as sored army, was castigated by India’s into our consciousness, hither or chairperson of the Gujarat Assem- Supreme Court. The litigation that has thither, when journalists on the prowl bly’s Public Accounts Committee has highlighted the brute human rights are able to beat the careful contract of been collating facts and figures, violations by the Indian state conti- complicit silence executed above. Himashu reveals hitherto unexplored nues before the apex court, even if Himanshu Kumar’s journey, information. The fact that these have every effort to ensure justice has also physically and literally, is a story best not traversed the democratic space invited state terror with victims being told by and heard from him. It is a into public debate – the newspapers, abducted and kidnapped by security 76 chilling account of despair and loss of state and national – signal a rigid con- forces, and attempts being made by hope, though nothing that comes from trol over news coverage within and the central and state governments to Himanshu and his wife at all suggests outside Gujarat about the state. Appli- influence their testimonies. Despite

SEMINAR 615 – November 2010 this the fact that hearings before the in Gujarat in 2002 has reached a his- being the prosecution in these cases, Supreme Court of India offer a chan- toric stage, when parts of that investi- wants to abort not ensure justice deli- nel intervention for the victims reveals gation mandated by the Supreme very, gets established. Why does this the windows of opportunity still pre- Court of India are found wanting and seemingly trivial but fundamental valent within Indian democracy. faulty by the same court, why does no issue not figure in our national debate? Another significant marker for outcry from legal luminaries follow Understanding transgressions the sixth decade of India’s Constitu- this transgression of the Indian Con- of the equality and non-discrimination tion is that of a democratically elected stitution? principles of our Constitution requires chief minister being investigated and a tedious process of comprehending hauled up for masterminding a cri- processes of justice delivery and minal conspiracy to commit mass A mention of the Bhopal verdict and accountability. Just as the executive murder of his own people. This inves- what followed is important for several in India is transgressing by failing to tigation was mandated by and is reasons. First because, by turning the reveal the contents of MoUs signed being supervised by the Supreme spotlight on accountability for mass with corporates, especially when they Court of India. The process of ensur- deaths on the corporate class, it poach on private and public land, the ing justice for mass transgressions exposed the chinks in the Indian poli- judiciary in India is failing by being and failures of the state – where even tical class and judiciary that struck an utterly unaccountable procedurally. the central government after 2004, utterly unfair deal over the corpses of Questions raised by this author despite political averments, did noth- the victims. The process of delivery of three years back on the principles ing to intervene – has happened under the judgement and media coverage of listing by the apex court registry the watchful monitor of the apex court that followed brought out the best in had incurred the wrath of a former that appointed a Special Investigation our media, though the stories came chief justice. The question refuses Team (SIT) for the purpose. Despite almost 25 years too late. A lesson to to go away, however. We have faced the process being kept alive by victim be learned is how the cause of justice tremendous hurdles, especially deli- survivors and rights groups, the offic- delivery could have been more ably berate delays by the court, citing non- ers within the team were chosen uni- helped, had the same electronic availability of time for the Special laterally by the Gujarat state. Though media cared to turn so sharp and sus- Bench constituted for hearing the accused of mass violations and trans- tained a spotlight, over the past ten Gujarat cases. The matter was not gressions, the amicus curiae in this years of its own existence? Does the decided for six years between 2002 case remains silent. story become a story only after it dies and 2008. Each time we had to bring a systemic death? the matter up, reminding the august Behind the headlines, systemic court that ‘justice delayed is justice A year into the investigations, after issues that straddle both the Bhopal denied’. survivors and legal rights groups story and story of the Babri Masjid pointed out the deliberate failures land dispute verdict, is a crucial pro- in investigations, and after several cedural question, and also a cons- In contrast the speed with which fraught hearings, two officers were titutional one, which escapes our a Special Bench and Constitution dropped. The officer who heads scrutiny, deliberately or otherwise. In Bench have been set up on pleas of pri- the team was also accused of non- the course of justice delivery in vate educational institutions suggest accountability for simply not being Bhopal, the judge was changed over and show that the matrix of public present in Gujarat for the historic three dozen times. Under our criminal interest needs to undergo thorough investigations. While monitoring law this means starting from ground public scrutiny. Surely the business these investigations and trials, the zero, from scratch. During the hearing interests of private educational insti- apex court has stopped short of ensur- of the Babri Masjid land dispute, tutions, charging crores of rupees in ing efficacious and timely remedies. the judge was similarly changed over capitation fees, cannot be dubbed as Between 2002-2008 when the case a dozen times. The discretion of national or public interest? Which are languished before the apex court, appointing and transferring judicial the cases that should receive priority attempts were made to destroy some officers lies with the law and justice before the Supreme Court? Can cases documents. Today, when the investi- (sometimes home) department of our of mass rights violations be shunted 77 gation into the high and mighty states. A clear and motivated nexus back for want of court time? When responsible for the genocidal carnage between the state executive who, while hearings in cases like the Bhopal gas

SEMINAR 615 – November 2010 tragedy and Gujarat mass carnage get position and structure of our power- shunted off, surely victims and rights ful media institutions – who owns groups have the right to ask procedural them, and what are the changes that questions on delivery of justice? such ownership brings. Remember, these are questions vital for the pub- lic sphere if we accept that media From the exposures of defence deals shapes and makes not just how we in government over the past decade, think, but what we think. to money influencing which questions are raised in Parliament or our assem- blies, only one small section of the Four years back we had, in a well- media remains at the heart of the bat- researched cover story on just how tle to deepen democracy and account- selective this media is in its choice and ability. It is those individuals and portrayal of news, tracked how a three media organizations that have brought lakh strong mela (festival) of tribal the stories of Binayak Sen’s callous workers protesting violations of their incarceration in Chhattisgarh, Irom rights in Jharkhand never made it to Sharmila’s heroic ten year long pro- the national news. We had analyzed test in Manipur, Zakia Jafri and other why and how the rape and killings of victim survivors’ valiant struggle the Bhotmage family at Khairlanjee for acknowledgement and justice in near Nagpur could never become a Gujarat to the national consciousness. Jessica Lal like candlelight vigil story The list of the avariciousness for our channels. The most basic trans- of the political class is extensive and gressions within this form of televi- varied. This has included a desire to sion journalism arise out of a scant influence and control the media. This knowledge of the principles of consti- influence is wielded through influen- tutional governance. tial financiers of television channels, India is too vast, too diverse, too an expensive and cumbersome medium vibrant to make the sweeping obser- that is shaping how we think and vation that this checklist has been what we think. While the vast Indian reduced to a unreal pinpricks, when middle class, too huge a number to be serious and fundamental transgres- relegated to the wings, watches and sions are accorded cosmetic surgery devours the news offered to us, there like treatment, and substantive correc- are no platforms and spaces where we tions not put into place. The picture of can question its content or delivery. gloom has episodically been bright- We have no idea of the financiers of ened by robust voices of democracy media institutions; a well-informed and dissent, clear and articulate, even guess that it is those powerful orga- if they today do not have the overt nizations who are beneficiaries of backing of the highly placed and favours from the political classes, who powerful. The powers and means today influence what we see as news, available under the Right to Informa- for how long and when. tion Act have further emboldened We have no independent knowl- these voices who bravely fight this, edge, barring market and advertising even risking their lives as recent kill- jargon, of how TRPs are measured. ings in Maharashtra and Gujarat have The discerning viewer knows that shown. Hope, scattered though it is, ‘paid news’ is now an irrevocable part surfaces in abundance. Despair arises 78 of the democratically accepted pack- from the failure of the lofty institu- age, no matter that we have never tions of the constitutional ideal lend- democratically questioned the com- ing meaning to that hope.

SEMINAR 615 – November 2010 The cobwebs of imperial rule A R U D R A B U R R A

FORTY-FOUR years ago, the editor servants’, as the saying went; they of this journal lamented the persist- had formed the administrative back- ence of an institution which should, bone (the so-called ‘steel frame’) of in his opinion, have been ‘swept away British India, and played an important together with the other cobwebs of role in the suppression of the nation- imperial rule.’1 The institution he had alist movement through the 1940s. in mind was the Indian Civil Service So it seemed anomalous to many (ICS), ancestor of the modern-day people that Indians in the ICS had IAS. The nationalist complaint against not only survived the transfer of the ICS had been an old one. They power intact, but had flourished in were ‘neither Indian, nor civil, nor the new regime.

* This note is based in part on a longer work child, Jeff Redding, Professor Peter Schuck, on the First Amendment to the Indian Consti- and Arkaja Singh. Thanks also to the Program tution. For help with the longer paper, I’d like in Law and Public Affairs at Princeton Univer- to thank President Aharon Barak, Yael Berda, sity, the Annual South Asia Conference at Professor André Betéille, Anuj Bhuwania, the University of Wisconsin-Madison, and 79 Jessica Boyd, Rohit De, Deborah Dinner, the Inaugural Conference of the Law and Mathew John, Siddharth Narrain, Vikram Social Science Research Network, for provid- Raghavan, Bhavani Raman, Daniel Roths- ing me the opportunity to present this work.

SEMINAR 615 – November 2010 In the same issue of Seminar, 1935, I make no apologies. There enough, by the founder-editor of this another author wrote that Nehru had is nothing to be ashamed of in bor- journal. Romesh Thapar was at that been ‘his own greatest enemy’: rowing.3 time the editor, printer, and publisher In 1947 he called his fellow-coun- of a journal called Cross Roads, the trymen to help in building a new weekly organ of the Communist Party India at every level. He desired Let me use the term ‘an argument of India. The journal was banned by passionately to rouse the Indian from colonial continuity’ to describe the Government of Madras under the spirit at home and to make the voice any argument against an institution, an terms of the Madras Maintenance of of India heard in the counsels of idea, a policy, or a law, in which the fact Public Order Act, 1949. In Romesh the world. And yet – this would be that such an idea is continuous with, Thapar v. State of Madras, Thapar unbelievable were it not true – he associated with, or representative of, challenged the ban, claiming that the sought to achieve these ends through colonial rule is used as a reason that act was unconstitutional because it the agency of those who had been counts against it. Such arguments are conflicted with the right to freedom of the trained servants of imperi- a familiar feature of current legal and speech guaranteed under Part III of the alism.2 political discourse, and have been so Constitution. since the time of Independence. The case was heard along with To take a recent instance, one Brij Bhushan v. State of Delhi, in The charge could be made more theme in the arguments made to the which the printer and publisher of the broadly. The judges of the first court in the Naz Foundation case Organizer, the organ of the Rashtriya Supreme Court were all serving against the criminalization of consen- Swayamsevak Sangh (RSS), made a members of the Federal Court of sual same-sex sodomy was that s. 377 similar challenge to the East Punjab India, a creation of the British Raj. of the Indian Penal Code was a ‘ves- Public Safety Act of 1949. Under the British judges continued in the High tige of the colonial order.’ In written terms of that act, the Chief Commis- Courts well into the 1950s, as did submissions to the court, the Alterna- sioner of Delhi had sought to require many members of the armed forces. tive Law Forum (ALF) argued that, prior scrutiny of material before pub- The cobwebs of imperial rule ‘While disgust and revulsion may have lication on ‘communal matter and news were everywhere to be seen after been a valid ground for colonial rulers and views about Pakistan including Independence. The idea that India to legislate by decree, it is clearly not photographs and cartoons other than should be governed by a parliamen- the case in a civilized society governed those derived from official sources.’ tary system of government, on the by a Constitution.’4 Similar arguments Westminster model, was more or less are often made with respect to repres- taken for granted in the Constituent sive security and anti-terrorism laws. The Supreme Court cases concerned Assembly, whose members had them- I believe that the scope of such ‘public safety’ acts passed by provin- selves been elected under the terms of arguments is more limited than we cial governments after Independence. the Government of India Act, 1935, a might initially think. In this short note, They were accompanied by constitu- British statute. The Constitution itself I will try to make my point with an his- tional challenges in the High Courts was modelled in large measure on this torical example from an early and par- of various provinces to provisions of act, as Ambedkar acknowledged to ticularly interesting period in Indian other statutes which restricted press the Constituent Assembly when he constitutional history: the Constitu- freedom: in particular the offence of introduced the Draft Constitution on tion (First Amendment) Act of 1951. ‘sedition’ in s. 124-A of the Indian 4 November 1948: The story begins with one of the Penal Code of 1860 and the Press One likes to ask whether there can first cases to make its way before the (Emergency Powers) Act of 1931.5 be anything new in a constitution Supreme Court – filed, appropriately These latter acts were ‘colonial lega- framed at this hour in the history of cies’ in a very straightforward sense: the world… As to the accusation 3. B. Shiva Rao (ed.), The Framing of India’s not only had they had been passed Constitution: Select Documents IV, 427-8 that the Draft Constitution has pro- (4 vols.). Indian Institute of Public Adminis- under colonial rule, but they had been duced a good part of the provisions tration, Delhi, 1966-68. crafted with a clear eye towards sup- of the Government of India Act, 4. See Naz Foundation vs. Govt. of NCT of pressing the nationalist movement. 80 Delhi & Ors., civil writ petition 7455/2001. For instance, the so-called ‘Press Act’ 1. ‘The Problem’, Seminar 84, 1966, p. 11. My thanks to Arvind Narrain and Siddharth 2. ‘Self Before Service’, Seminar 84, 1966, Narrain of the ALF for making these petitions had been passed at the height of the p. 13. available to me. civil disobedience movement, and

SEMINAR 615 – November 2010 gave the executive power to require the executive power over press cen- place. Under the terms of the India owners of printing presses and news- sorship that was much wider in scope Independence Act, the power of legis- papers to furnish security deposits, than the Art. 19(2) exception allowed, lation would reside in the first instance which could be forfeited upon a and should be struck down on that with the Constituent Assemblies of variety of grounds formulated in s. 4 basis. The government responded by each of the new dominions of India of the act. attempting, in the First Amendment and Pakistan.8 Having been elected In 1932 the grounds for forfei- Bill, to expand the scope of these in 1946 on basis of the Cabinet Mis- ture specified in the Press Act were exceptions, giving them retrospective sion Plan, the Constituent Assembly expanded to include, among other effect, by ‘being deemed always to have assumed legislative powers at inde- things the publication of material been enacted’ (s. 3(a), Amending Act). pendence, sitting as the ‘Dominion which tended, directly or indirectly, to In addition, the amendment rehabili- Parliament’ in the mornings and as the bring into hatred or contempt’ the tated all laws which had been declared Constituent Assembly in the after- Government of India; to ‘excite dis- void because of being violative of Art. noons.9 Who better to interpret the affection’ towards it; to encourage peo- 19(2) as it was originally enacted.7 Constitution, and amend it when the ple to refuse to pay taxes or to interfere courts had shown themselves to inter- with the administration of the law; pret it incorrectly, than the very peo- and to encourage public servants to The First Amendment Bill was criti- ple who wrote the Constitution? resign to forebear or delay acts con- cized in Parliament for many reasons. nected with their public functions.6 For one, the constitutional provisions These were all clearly directed against in question had been discussed at great The idiom of colonial continuity Congress activities during the civil length during the deliberations of the played a central role in the debates disobedience movement. So the gov- Constituent Assembly in 1946-49; yet around the amendment. Opponents ernment of independent India was the government sought to amend them of the bill argued, of course, that the applying and defending a law which in May 1951, only fifteen months after amendment was a way of protecting had been used to suppress the very the Constitution had been adopted. the hated ‘colonial laws’. But Nehru movement that brought independence Questions were also raised about the turned the argument on its head: to be to India, the passage of which had been legitimacy of this particular Parlia- suspicious of giving the government among the grounds for regarding colo- ment to amend the Constitution. Since power to enact repressive laws was to nial rule to be illegitimate in the first elections under the new Constitution be suspicious of democracy itself. place. were not held until late 1951, the First It is only here we seem not to rely Amendment was being debated by on ourselves, not to have faith in members of Parliament who had been ourselves, in our Parliament or our The laws were uniformly struck elected on the basis of the restricted Assemblies, and rely, just as some down by the courts on grounds of franchise given by the Government of of us may have relied on external overbreadth. The relevant exception India Act, 1935. Why not wait a few authority like the British power of to the protection of freedom of speech wonths until the formation of the first old days; we rely on some external in Art. 19(2) of the Constitution con- Lok Sabha, elected by universal fran- authority – maybe geographically cerned laws relating to ‘any matter chise, so that the legitimacy of Parlia- internal – and not perhaps have which...undermines the security of, or ment to amend the Constitution was faith in this Parliament.10 tends to overthrow, the State.’ The not in doubt? It is not the government which courts argued that these statutes gave Against this, Nehru pointed out displays continuity with the colonial that the Parliament which debated 5. The cases challenging the Press (Emergency these constitutional amendments con- 8. India Independence Act, 1947 (10 & 11 Powers) Act were Amar Nath Bali v. The State sisted of the very same people, sitting Geo. 6). (AIR (38) 1951 Punjab 18), In re Bharati Press as the Constituent Assembly, who had 9. After the Constitution was adopted on 26 (AIR (38) 1951 Patna 12), and Srinivasa v. January 1950 and India ceased to be a Domin- State of Madras (AIR (38) 1951 Madras 70). written the Constitution in the first ion, the Constituent Assembly was dissolved, S. 124-A of the Indian Penal Code was chal- 7. The act also sought to protect zamindari and what had been until then the Dominion lenged in Tara Singh Gopi Chand v. The State abolition and land reform laws, which had Parliament was now known, pending elections (AIR (38) 1951 Punjab 27). been held to conflict with the right to property under the new Constitution, as the ‘Provisional 81 6. Indian Press (Emergency Powers) Act (Act guaranteed by Art. 31 of the Constitution, and Parliament’. XXIII of 1931), amended by the Criminal to protect reservations by amending the non- 10. Parliamentary Debates vol. XII, pt. 2, Law Amendment Act (Act XXIII of 1932). discrimination clause of Art. 15(1). 16 May 1951, col. 8825.

SEMINAR 615 – November 2010 regime by trying to preserve laws the Constituent Assembly and now basic civil right. Rather, they couched enacted by the British for the purposes opposed the amendment. One of his their opposition in terms having to do of press censorship. It is the opponents criticisms was that the proposed with the continuity of the new Indian of the government who exemplify amendments would lead to the penali- regime with the one it displaced. this continuity: just as the British did zation of forms of nonviolent protest Independence carried with it the not trust Indians to rule themselves, that had formed the moral basis for promise of making a clean break with so too these opponents do not put the independence movement: the past in order to ensure freedom and their trust in Parliament, but in ‘exter- What is not an offence? As a mat- progress. Those who sought to protect nal authority’, i.e. the courts. ter of fact, during all our struggle or re-enact press laws were criticized Nehru also used an argument we were preaching against what on the grounds that they were no dif- from colonial continuity to impugn was considered by the State laws ferent from the British in this respect; the legitimacy of the courts, claiming as offences. The whole of our satya- that this would be a betrayal of the that the judges who presided in it graha movement was to break the promise of independence. were wedded to ‘old ways of think- law, to break such provisions of the ing.’ The charge was echoed by N.G. law that created offences. Today, if Ranga, who worried about being ‘con- you pass this amendment, even But the sophistication of the rheto- demned’ to a situation in which pro- satyagraha can come to be legis- ric around colonial continuity – as gressive legislation would be held up lated against.12 seen in the responses of Nehru and until the judges of the Supreme Court Rajaji, like Nehru before him, Rajaji – might suggest one way in either died or retired, and ‘our govern- also turned the argument on its head. which such arguments are limited. ment’ could replace them with others His response was that the whole point They can be used for and against the who were more progressively minded. of civil disobedience conceived of as same position, depending on the a form of protest was that it should be feature one isolates and identifies as punished: it was the acceptance of the ‘colonial’. And deciding whether or Against this, the opposition pointed penalty which gave such protest its not a feature is colonial in the relevant out that the Supreme Court should not moral force. So to the extent that such sense is hardly a straightforward be framed, as Nehru tried to do, as an a form of political agitation was worth thing. As a matter of brute historical alien institution (an ‘external autho- preserving, it was important to allow fact, one might say that a law or an ins- rity’), one which represented some it to be punished. To do otherwise titution is colonial if it has its genesis reactionary element somehow opposed would be like ‘trying to learn to ride in the colonial period. But surely this to the spirit of the constitution. As on a wooden horse. It must be a real is much too crude a criterion, for if it S. P. Mookerjee put it: horse; it must kick and throw out.’ were correct, arguments from colonial Here are a set of men who are continuity would be much to general. selected by the Government. They It is true that s. 377 of the Indian are not foreigners coming from Given the Congress majority in the Penal Code is a colonial legacy; but so outside. They are our own chosen house, and the Congress whip, it was is s. 300, which criminalizes murder. selected men holding office during a foregone conclusion that the bill If we wish to keep one and scrap the their life, entrusted with the duty of would pass, despite the vociferous other, then being a colonial legacy is seeing whether the country is being opposition against it. But my interest not a sufficient condition of being a administered in the spirit of the is not so much in the merits of the bad law, one needs something more.13 Constitution.11 amendment itself, as in the form in There is a more subtle reason And so arguments from colonial which the amendment was debated. for scepticism about the term ‘colo- continuity were used to ingenious Those who attacked restrictions on the nial’ as a category of legal and politi- effect on both sides of the debate. freedom of the press did not (by and cal criticism. This is the one provided Nowhere was this more evident than large) couch their arguments in insti- 13. Of course, the petitioners in the Naz case in an exchange between J. B. Kripalani tutional terms having to do with the did in fact make a number of different argu- and C. Rajagopalachari. Acharya place of the press in a democracy; ments against s. 377 in addition to the argument Kripalani had been the Chairman of nor were their arguments generally from continuity. 82 the Fundamental Rights Committee in couched in terms of free speech as a Note that there is nothing inconsistent about a completely revolutionary position, where one 12. Parliamentary Debates, pt 2, v. XII, desires to get rid of all colonial legacies what- 11. Ibid., col. 8855. 30 May 1951, col. 9722. soever and rebuild from the ground up. My

SEMINAR 615 – November 2010 by S. P. Mookerjee in response to use these laws to repress political dis- extent a matter of argument. So for Nehru’s charge that the judges who sent in the way the colonial govern- instance, when an independent coun- struck down the press censorship laws ment did.14 So according to Nehru, the try adopts a colonial legacy, one might were somehow alien to the Constitu- historical association of a law or ins- see it symbolic of a colonized mindset tion. For the Supreme Court was titution with colonial rule, even with that has not been able to shake off after all a creation of the Indian Cons- colonial repression, does not provide colonial rule; but one might equally titution. Judges of the colonial Federal us with a direct argument in favour of see it as evidence of tolerance or Court became judges of the Supreme doing away with it: again one needs broad-mindedness or strength. What Court by virtue of Art. 374, one of the something more. makes the difference will be the con- Transitional Provisions of Part XXI tent of what is adopted, not the fact of the Constitution. that it has been adopted. Another transitional provision, Finally, one might think that argu- Art. 372, provided that ‘all the law in ments from colonial continuity should force in the territory of India immedi- be taken seriously because of what Now of course nothing I have said ately before the commencement of such continuity symbolizes: an should be construed as a defence of this Constitution shall continue in acceptance of all that was wrong with any colonial legacies whatsoever. force therein until altered or repealed colonial rule, for instance. In the There are good reasons to do away or amended by a competent Legisla- Constituent Assembly, T.T. Krishna- with many of the laws and institutions ture or other competent authority.’ If machari emphasized the symbolic that are in fact legacies of colonial the Constitution is ours, then, given aspect of this debate in his discussion rule; and these reasons might have to Art.372, there is a perfectly legitimate of K.M. Munshi’s proposal to delete do with the reasons why that rule was sense in which the laws we inherited the word ‘sedition’ from among the illegitimate to begin with, e.g., that are ours as well. This is obviously not exceptions to the right to freedom of they are in fact repressive or funda- to say that they are immune from criti- speech. While he was in favour of the mentally anti-democratic in some cism, but merely to point out that it is amendment, he pointed out: respect, that they have no place in a not an easy matter to say what counts The value of that amendment country that aspires to some form of as colonial in an argument from colo- happens to be only, to a very large social justice, and so forth. My point nial continuity. extent, sentimental. The word ‘sedi- is that arguments from colonial con- tion’ does not appear therein. tinuity are only valid when we can Sir, in this country we resent even articulate the reasons why we should Of course, this is not the only way the mention of the word ‘sedition’ do away with these laws and institu- in which to make sense of the ‘colo- because all through the long period tions. This is generally not difficult to nial’ in arguments from colonial con- of our political agitation that word do, and in practice – as in the Naz case tinuity. One of the recurring themes in ‘sedition’ has been used against our – arguments from colonial continuity the parliamentary debates on the First leaders, and in the abhorrence of are supplemented by, or are supple- Amendment was the fact that the laws that word we are not by any means mentary to, these substantive first- which the government sought to pro- unique.15 order arguments as well. tect had been enacted for the purposes While there is certainly some- But if we can articulate these of protecting colonial rule from thing to such symbolic arguments, substantive first-order arguments in nationalist challenge: they were ins- they too suffer from an important, and this way, it’s unclear what extra work truments of colonial repression. But more general, limitation. For the sym- is now being done by calling the the response in defence of these laws bolic value attached to something impugned laws and institutions ‘colo- was precisely that they were merely depends upon how one feels about nial’. Why point fingers at the origins instruments of such repression. Recall that thing in the first place, and what of such laws and institutions when Nehru’s defence of press censorship one feels is to some extent a matter of we can point fingers at their content? laws: it is not laws but governments choice and perspective, and to some Perhaps Ambedkar was correct after that repress, and the government of all, and there is nothing to be ashamed independent India would simply not 14. Here he echoed a point made by many of in borrowing – though one might people in the Constituent Assembly Debates add, as he did not, that there may be 83 only point here is that if ‘colonial continuity’ around the right to freedom of speech. is the instrument of critique, then it applies 15. Constitutional Assembly Debates, volume plenty to be ashamed of in what we across the board. VII, 773. have in fact borrowed.

SEMINAR 615 – November 2010 A constitution amid dire straits U S H A R A M A N A T H A N

IT is a steep climb to inclusive cons- ‘traffic in human beings and begar titutionalism. Three narratives spin and other forms of forced labour’ real-life tales of law, practice and pos- declares: ‘On the commencement of sibility. They speak of those who may this Act, the bonded labour system make it, and those who certainly can- shall stand abolished and every bonded not, not unless the world is turned labourer shall, on such commencement, upside down, anyway. stand freed and discharged of any obli- The easy pragmatism that has gation to render any bonded labour.’1 de-prioritized the ending of slave-like In the hereafter, and with imme- conditions of bonded labour is a chill- diate effect from when the Bonded ing constitutional fable. The deter- Labour Act commenced, ‘Any custom mined bid to end manual scavenging or tradition or any contract, agreement is a tale tinged with optimism. The or other instrument (whether entered anti-beggary law is a sordid tale of dis- into or executed before or after the respect for human life and an aban- commencement of this Act), by virtue donment of constitutional norms. of which any person, or any member There are laws that are relevant of the family or dependent of such in perpetuity, or till they are repealed person, is required to do any work or replaced; much of legislation would or render any service as a bonded fit this description. There are others labourer, shall be void and inopera- that fade with the passage of time and tive.’ The liability to repay the bonded inhabit the territory governed by the debt was extinguished. No ‘creditor’ ‘doctrine of desuetude’; it wouldn’t was to accept payment against the do to just refer to it as ‘death by dis- extinguished debt on pain of punish- use.’ There are yet others that have im- ment that may extend to three years mediacy, where it is the moment that imprisonment or fine. That’s it. The is momentous, and the need for the system is ended, never to be revived. law is intended to be finite; that is, the That is the legislative imperative. problem is to vanish. Of course, bonded labour has The Bonded Labour Act 1976 is not vanished. Denial continues to be 84 such a law. Deriving constitutional an obstacle in dealing with the fact of authority from Article 23 which, as a 1. Section 4 (1) of the Bonded Labour Act ‘right against exploitation’, prohibits 1976.

SEMINAR 615 – November 2010 the exploitative systems of labour and scavenging of human excreta still con- that would eventually have the conse- bondage. The case that is prominent tinues in many parts of the country’; quence of doing away with manual amongst the building blocks of public ‘the municipal laws by themselves... scavenging. In the mid-1990s, S.R. interest litigation (PIL)2 has moved are not stringent enough to eliminate Sankaran recounted in a recorded to the National Human Rights Com- this practice’; ‘it is necessary to enact conversation held on 14 September mission3 – shifted from fundamental a uniform legislation for the whole of 2010,7 that following upon discus- rights to human rights – where it rests India for abolishing manual scaveng- sions with Bezwada Wilson, the drive among many unresolved injustices. ing by declaring employment of to aim for the eradication of this Swami Agnivesh continues to strive manual scavenging for removal of execrable practice took over the for recognition of non-payment of human excreta an offence and thereby imagination. It guided their steps to minimum wages as a marker of bond- ban the further proliferation of dry Vijayawada where, some time in age. Pragmatism, which trains the eye latrines in the country’; and ‘it is 1995-96, a meeting was called and not to see, and cynicism which takes desirable for eliminating the dehu- members of the community attended value out of every legitimate concern, manising practice of employment of and spoke.8 The next meeting was in turns illegality and unconstitutionality manual scavengers and for protecting Hyderabad where Narayanamma, into mere fact. And bonded labour the human environment to convert dry who worked as a manual scavenger in flourishes as fact, deliberately unseen, latrines into water-seal latrines or to a 400-seater dry latrine in Anantapur, lying vanquished after a battle for construct water-seal latrines in new spoke with a simplicity that hit home: recognition, now back in denial. The constructions.’ So the law was made. ‘We are born in this caste. We are immediacy of the law has been revised The same year, and a few months doing this because we have no alter- to make it merely aspirational. later, a law was enacted to establish native. Do you think we want to do it? the National Commission for Safai It is forced on us.’ Karamcharis, which defined ‘safai The case for the manual scavengers karamchari’ as ‘a person engaged in, was no different, not at the beginning or employed for, manually carrying This meeting involving about 150 anyway. In 1950, Article 17 of the human excreta or any sanitation people had a cascading effect. It was Constitution declared: ‘Untouchability work.’ The point that this setting up of still confined to Andhra Pradesh, but is abolished and its practice in any a commission served is moot, and may the tactics and strategies that were form is forbidden.’ be sidestepped for the moment. Yet, as to expand to the rest of the country In 1993, deriving its authority Parliament’s acknowledgment of an began to be set. Survey forms recorded from Article 252 (1) of the Constitu- unacceptable condition, the National the person, the practice and the place. tion that allows Parliament to make Commission for Safai Karamcharis Government officers were drawn into law on a state subject,4 and armed Act 1993 was significant. the ambit of action; that S.R. Sankaran with resolutions passed in the legis- was a retired officer of great repute latures of Andhra Pradesh, Goa, helped excite the attention of the Karnataka, Maharashtra, Tripura and The 1993 Acts gave language and bureaucracy. Around this time it West Bengal, Parliament enacted the legislative recognition to the perpetu- Employment of Manual Scavengers ation of manual scavenging and the 6. Statement of Objects and Reasons of the National Commission for Safai Karamcharis and Construction of Dry Latrines continued existence of dry latrines. Act 1993. (Prohibition) Act 1993. They acknowledged that this was a 7. S.R.Sankaran was an extraordinary civil Decades after the Constitution ‘dehumanising’5 and ‘obnoxious prac- servant who worked relentlessly on issues that had been promulgated, the govern- tice’, which is a ‘continuing stigma included bonded labour, tribal rights and the 6 resurrection of dignity of the marginalized. ment had to acknowledge that ‘the on our social fabric.’ The consequent He was a core member of the Committee of dehumanising practice of manual untouchability was an unspoken Concerned Citizens which was the one team presence. of negotiators who had the moral authority to 2. Bandhua Mukti Morcha v. Union of There was already the work speak to both the government and the People’s India (1984) 3 SCC 161. War Group. Convinced that that there that Bindeshwar Pathak was doing on should be no compromise on the eradication 3, PUCL v. State of Tamil Nadu WP (Civil) sanitation, as also Ishwarbhai Patel, of manual scavenging, he was mentor to the No. 3922 of 1985, order dated 11 May 1997 movement, adviser and comrade-in-arms. His 85 in the Supreme Court. 5. Preamble to the Employment of Manual one determined hope was to see the end of 4. ‘Sanitation’ is in the VII Schedule, State Scavengers and Construction of Dry Latrines manual scavenging before this year ran out. He List, Entry 6. (Prohibition) Act 1993. is, however, not here to see what happens, and

SEMINAR 615 – November 2010 was decided that the Safai Karam- cation of manual scavenging, not let- dirty the tracks, and it is to manual chari Andolan (SKA) should be a ting its attention veer to issues that scavenging that the public turns to movement. It would focus on the press upon its consciousness – not remove the excreta and clean the eradication of manual scavenging, even to sewage workers or to the mess. The Railways, and its officers, which included the destruction of dry rehabilitation of those who cease to have had the impertinence to tell the latrines. work as manual scavengers. The only court that it will be many years before This was to be a movement, not way to put an end to the practice is by they can replace the present system of a registered organization with its withdrawing from the work as manual toilets with those that will not need the attendant formalities. It was a mobili- scavengers – a tough call for people, service of manual scavengers. zation effort from within the commu- predominantly women, who have That the state and its agencies nity. A padayatra was undertaken been trained to see this as their tradi- routinely violate this law is merely that visited 23 districts. Dry latrines tional role; who face pressure from the reinforced by this lawless response. were demolished along the way. In community of users of dry latrines; Section 15 of the Employment of Anantapur, S.R. Sankaran spoke to and who are extremely uncertain that Manual Scavengers and Construction the Collector who then himself had the any other work will ever be allowed of Dry Latrines (Prohibition) Act dry latrines demolished. The padayatra to come their way. Without state sup- 1993 makes the ‘company as well as moved on and there were close to 1000 port, even subsistence could be in every person in charge of, and respon- people when it concluded in Hydera- jeopardy. sible to the company for the conduct bad, where there was a ceremonial Yet, it is a striking statement of its business at the time of the com- burning of a dry latrine. of the nature of the work and the mission of the offence’ guilty of the indignity it brought with it that, while offence. That no prosecution has the future was still unsecured, women, been launched, nor has the Railways There is an eye-twinkling moment especially, began to step out and refuse changed its system, is a comment on when the narrative runs to a later time to go back to work. It went further. impunity that non-seriousness can when a dry latrine was spotted in a Many became active in the movement introduce to the law. Munsif Magistrate’s (MM) court. The for eradication even before they MM called in the police and said that stopped working as manual scaven- public property – a dry latrine which gers. The sight of women cleaning Yet, 2010 is when it was decided that existed in defiance of the law, no less! dry latrines, carrying bucketloads of patience should end. On 29 Septem- – was being destroyed. Wilson called excreta during the day, and joining ber 2010, embarking on and travelling S.R. Sankaran, asking him how this the procession for eradication – even all through October, a ‘bus yatra’ start- should be handled. Sankaran told him leading it – later in the day has been ing at five far-flung points on the map to get the objections from the MM in captured on camera and preserved as of India, has begun moving towards writing – and the MM gave it! It was, significant memory. Delhi. Their mission is to make cer- finally, an order from the Supreme tain that manual scavenging actually Court that led to the dry latrine being disappears. The message bearers are given the crowbar treatment. The issue was taken to the Supreme dominated by those who have ceased Since then, and to date, the move- Court as a case in 2003. This was a to do the work of manual scavenging. ment has grown, focused on the eradi- carefully crafted strategy, and one that This is constitutional history in the has worked to challenge state denial making. to help make it happen, having passed away, quietly, on 7 October 2010. He helped that the practice exists, to activate the In the past decade, their enter- conceive, and get started, the bus yatra, law, and to forge a path to the extinc- prise in identifying, surveying, con- which, even as I write, is wending its way to tion of the practice. That is another tale vincing, supporting, representing and Delhi demanding national attention to the waiting to be told.9 negotiating has meant that they have immediate cause of putting an end to the inhuman practice of manual scavenging. The Railways continue to be the been able to declare some states, and The conversation with him happened a little most blatant violators of the law, and some districts in states, as manual over three weeks before his demise, and was the case brought this out in the open. scavenging-free. What is needed is the meant to be the first of many conversations Train toilets, as presently constituted, nudge that will lend power to the that would construct the biography of the 86 movement. movement, and inevitability to the 8. Recorded conversation with S.R. Sankaran 9. Safai Karamchari Andolan v. Union of outcome, and this must come from on 14 September 2010. India W.P.(C) No. 583 of 2003. beyond the community. That this yatra

SEMINAR 615 – November 2010 must be actively aided to generate. has been so detained once is found beggars’,13 a move endorsed by a divi- When it is all done and ready to be begging again, they shall be detained sion bench of the Delhi High Court.14 museumized, that may be the time that ‘for more than three years.’ And every The vans, in Delhi, carried hindsight will recognize the signifi- time thereafter, the law requires the the identifier ‘Anti-Beggary Squad cance of the moment. Till that hap- court to order detention for a period of Mobile Court’, till someone seems to pens, there is a common responsibility ten years. All this by ‘summary trial’. have thought that this was politically that still has to be met. incorrect. The ‘anti-beggary squad’ was painted over, badly; the lettering Arbitrary arrest of the apparently is visible, yet, the overlay of paint can There is another script that has deve- poor, subjected to a summary enquiry still assist state denial of the antago- loped around the theme of intolerance. and summary trial, and sentenced to nism that the words display. The court The idea of begging as nuisance has long terms in custody. Can it get worse? directed the government to try to send given way to begging as conduct that It seems it can. There are ‘raids’ and the beggars back to the state from is akin to crime. Only, the constitu- the ‘rounding up’ of ‘beggars’. There where they had come15 – a statement tional protections that accompany is nothing in the law prescribing on citizenship, and the right to move investigation, custody, trial and punish- ‘raids’ and rounding up; but there is about and reside anywhere in the ter- ment are missing. nothing proscribing it either, and it is ritory of India. The Bombay Prevention of Beg- the routine that policemen and ‘social ging Act 1959 is, as the year suggests, welfare’ officers adopt. In 1991, a a legislation that was enacted after the committee set up by the Bombay High Poverty, it would appear, produces Constitution was promulgated. It has Court accompanied a ‘police squad’ borders and boundaries, even as events acted as a template for other states, and saw that ‘the arrest is made of the such as the Commonwealth Games with Delhi adopting it as its own since people who are found on the street in deepens rightlessness. A plan to hold 1960. This is a remarkable piece of dirty clothes and wandering. They are the ostensibly poor in two parks in the legislation, difficult to explain in a not actually found begging... large city, enclosed by CWG banners to constitutional setting. Defining ‘beg- number of wrong arrests are made hide the shame of extreme poverty, ging’, the act extends it, by definition, which is inhuman and unjust. ...There and the detention – without process – to persons ‘having no visible means of is no criterion to decide as to who is of those rounded up was a prelude to subsistence and wandering about or a beggar, who is sick, physically the games.16 When the time came, the remaining in a public place in such handicapped or in need of economic poor vanished, but without a trace. If conditions or manner as makes it likely help.’11 they return, maybe we will hear what that the person doing so exists by Then, the committee was wit- happened. Or maybe we won’t. soliciting or receiving alms.’10 Osten- ness to 33 remand cases and 21 new In May 2000, eight persons sible poverty makes the poor a target cases in the courtroom: the 21 were all died in the Lampur Beggars Home in of this law. directed to the ‘beggars’ home, and 31 Delhi. The cause: faecal contamina- The law punishes poverty. A per- of the 33 were released while two tion in the water. In Bombay, the son ‘found begging’ may be arrested were detained. It was all over in eight ‘death register’ in the Beggars Home without a warrant, and so they almost minutes.12 If it seems like this is as bad for Males in Chembur recorded 19 always are. This is followed by a as it can get, consider the ‘inauguration’ deaths between April and September ‘summary enquiry’, after which the of mobile courts by the Delhi Social person ‘found to be a beggar’ may be Welfare, Law and Justice Minister a 13. ‘Mobile courts to catch beggars’, The detained in a ‘certified institution’ – little over a year ago, which would Hindu, 1 September 2009, New Delhi. or a ‘beggar’s home’ – ‘for a period of ‘deliver quick judgment on the caught 14. ‘Get beggars off the street, High Court tells not less than one year, but not more Delhi government’, The Tribune, 11 August 2009. than three years.’ When a person who 11. ‘Report on the procedure followed in 15. Ibid. arrest of beggars under the Bombay Preven- 16. ‘Govt.’s novel gameplan: Hide beggars in 10. Section 2 (1) (d) of the Bombay Preven- tion of Begging Act 1959’, p. 6 in Report of covered parks during CWG’, Hindustan tion of Begging Act 1959. My article, ‘Osten- the Commission on Beggars Act, Annexure Times, 10 September 2010 found at http:// sible Poverty, Beggary and the Law’, No.4 in the matter of Manjula Sen v. State of www.hindustantimes.com/Govt-s-novel- 87 Economic and Political Weekly, 1 November Maharashtra Writ Petition No.1639 of 1990 gameplan-Hide-beggars-in-covered-parks/ 2008, pp.33-44, is a detailed look at experience in the High Court of Bombay. Article1-598320.aspx, visited on 14 October with this law. 12. Id. at p.5. 2010.

SEMINAR 615 – November 2010 1990. The record in the Female Beg- gars Home was 55 deaths in 1987-88, 94 in 1988-89, 20 in 1989-90 and 4 in 1990-91.17 In September 2010, the Beggars Home in Bangalore saw a spate of 28 deaths. These are reports that emerge sporadically, indicating a deeper malaise The choicelessness, and helplessness, of those put way in these institutions has nowhere been set off by the responsibility of the administration. Recklessness, height- ened risk and impunity are the bricks with which this edifice is built. In 2006, even as a lawyer’s insistence brought in an era of round- ups and raids and heightened activity in clearing the streets of Delhi,18 another judge of the same High Court was attempting to explain to those who would listen that beggary could, indeed, be not about the criminality of the poor but about ‘a failure of the state.’19 There are twin goals, he said, to the act: ‘nobody should beg and nobody should need to beg.’20 This, however, has been a solitary voice in the wilderness. It would seem that there are no constitutional restraints on how ‘beg- gars’ are to be treated. This law is clearly a measure of social control. It criminalizes poverty. It enables uncons- titutional detention over long periods of time. In keeping the poor within the zone of illegality, it enables excesses, exclusion and exile. It has accumu- lated at least 20 years of experience of death, detention and denial of even basic rights. This is no hyperbole. Yet, it remains on the statute books. This is the Constitution as those in poverty experience it.

17. Supra note 11. 18. The Court on its Own Motion v. In re:Begging in Public, Writ Petition (Criminal) No. 1840 of 2006. 19. Ram Lakhan v. State, Criminal Revi- 88 sion Petition No.784 of 2006 decided on 5.12.2006. 20. Id. at para 6.

SEMINAR 615 – November 2010 The way forward F A L I S . N A R I M A N

A written constitution when enacted titution, as it came to be known. But takes on a life of its own. It moves despite all precautions taken in its along under the guidance of its drafting, it lasted only seven years! appointed functionaries who some- The first lesson then about written times function well, but sometimes constitutions is that they do not func- they also function badly. So, a written tion on their own. A special effort has constitution develops its own ethos. It to be made by the custodians – those ultimately fulfils the destiny of the entrusted with their functioning – to country for which it is written – if it work them. lasts! As to how those in charge of the The Indian Constitution was levers of power in India attempted this barely a year old when Sir Ivor is set out in detail in Granville Austin’s Jennings – prolific author of Westmin- book published in 1999.1 For his ana- ster-type constitutions – was invited lysis of the working of India’s Consti- by the University of Madras to deliver tution in the first fifty years, Austin a lecture on its provisions. Jennings drew on documentary material and did not think much of our document (what historians now call) ‘personal of governance. ‘Too long, too detailed, information’ painstakingly acquired too rigid’, was his laconic comment. through interviews with important By the nineteen sixties, the same functionaries at various levels. In the Ivor Jennings had been commissioned 89 1. Granville Austin, Working a Democratic to write a new constitution – for the Constitution: The Indian Experience. Oxford Island of Ceylon: the Soulbury Cons- University Press, Delhi, 1999.

SEMINAR 615 – November 2010 long and detailed Constitution of dent of history. Because, in 1947, the drum raised in connection with the India 1950, Granville Austin sees British left us, somewhat in pique. USA – many years ago. She said – yes, three distinct strands: (i) protecting Amidst the trauma of Partition, the it was a woman – a Congresswoman: national unity and integrity, (ii) estab- members of India’s Constituent ‘We the people’ is a very eloquent lishing the institution and spirit of Assembly, motivated by the urgent beginning. But, when that docu- democracy, and (iii) fostering social need to preserve the political and cul- ment was completed on 17th Sep- reforms. The strands are mutually tural unity of what was left of British tember, 1787, I was not included in dependent and inextricably inter- India, valiantly rose to the occasion that ‘We the People’. I felt some- twined in what he elegantly describes and forged the document that became how for many years that George as ‘a seamless web’. the Constitution of India 1950. Washington and Alexander Hamil- It is under this seamless web of The life of a written constitution ton just left me out by mistake. a ‘lawyer’s constitution’ (as Jennings – like the life of the law – is not logic But I realize that it is through the had sneeringly characterized it), that (or draftsmanship), but experience. process of interpretation and Court we have regularly held elections every And sixty years of experience on this decision that I have been finally five years on the basis of adult fran- subcontinent has shown us that it is included in ‘We the People’. chise: as many as 650 million people easier to draft a constitution than to Nicely put. exercised their franchise in May 2004, work it – Pakistan and Bangladesh and more than 700 million citizens have drafted and crafted different voted in the subsequent general elec- written constitutions at different times, Well that in a nutshell describes tions in April-May 2009. Despite the but they have been interspersed with what has been the role of our Supreme misgivings of constitutional histori- long periods of martial law and civil Court – by interpretation and court ans, whenever governments in India, and military dictatorships. We will decision it has broadened the reach of whether at the Centre or in the states, never be able to piece together a new the Constitution’s provisions; it has have been voted out, transfer of power constitution in this present day and age included within the range of its benefi- has been according to the provisions of even if we tried, because innovative cent provisions those who were not our written Constitution, even though ideas however brilliant – howsoever born when India got independence. occasionally it may not have been con- beautifully expressed in consultation That is why I am proud of our sonance with its true spirit. papers and reports of commissions – judges, present and past, who have cannot give us a better constitution. interpreted and sustained this Consti- There are other forces in the making tution, which was framed for only I recall with pride Prime Minister of a constitution that cannot and must 350 million people, most of whom James Callaghan’s tribute when Indira never be ignored – the spirit of persua- are not alive today. This is one of the Gandhi was defeated at the polls in sion, of accommodation and of toler- ways in which a written constitution March 1977. Callaghan said that the ance. They bear their indelible imprint is made to grow into a dynamic living ultimate mark of a true democracy on all constitution-making and all document. Another way is through is the willingness of a government three are at a very low ebb today. conventions: an amendable consti- defeated at the ballot box to surrender tution like ours has to evolve with power peacefully to its opponents. experience. Before we think of revi- This is what had happened when the As for me, I am proud of our Con- sions and amendments we must Janata Party swept the polls. And this stitution. The most eloquent words in first establish working norms or con- is what happened again when those it are: We the people; they are also the ventions. That is how all constitutions who held power since March 1977 opening words of the world’s oldest are run. were in turn defeated at the elections constitution, that of the United States Despite the fact that ours is the of 1980, and Indira Gandhi came back of America. But what about the over- longest constitution in the world, there to power. whelming majority of India’s now are significant silences in its provi- Truly then, this constitution overpopulated millions, who were not sions. They have been explored by embodying a parliamentary form of born before 1950? They were not enlightened constitutional functiona- government was not only a compulsion included in ‘We the People’. How ries from time to time – and when 90 of geography – shaken and divided by then are they provided for in our writ- these silences are probed, they help to the ‘earthquake’ of the Partition in ten Constitution? A shrewd politician constitute precedents: Let me give one 1947 – it was also a compelling acci- gave an answer to a similar conun- or two instances:

SEMINAR 615 – November 2010 Though the President is bound introduce President’s Rule in Bihar. the Chapter on Fundamental Rights by the advice of his Council of As was his practice, Narayanan gave worked as truly intended? A trouble- Ministers regarding promulgation of elaborate reasons for his decision. some question best left to be explored ordinances, there is nothing in the And the Union government under by a future constitutional historian of Constitution preventing him from the prime ministership of Inder Gujral the stature of the late H.M. Seervai. drawing attention of the Council of wisely refrained from reaffirming its In his exhilarating Hamlyn Lec- Ministers to the seeming impropriety recommendation under the proviso to tures, Justice Stephen Sedley2 has of a particular ordinance being prom- article 74(1) and so ‘ensured the reminded his readers that the rule of ulgated at a particular time. At a time smooth working of the Constitution.’ law of which we speak so glibly, is a when the Tenth Lok Sabha had, all The opening words of the Cons- necessary but not a sufficient condi- but in name, been dissolved, the titution – ‘We the People’ – tell us at tion of a decent society. There is more Narasimha Rao government placed the start, who this constitution is for. to a decent society than the rule of two ordinances before the then Presi- But in a pluralistic society like ours, law (he says) – for instance: judicial dent for promulgation – namely, one in a vast subcontinent like this – in enforcement of rights by courts of for shortening the period of poll cam- a land of a ‘million mutinies’ (as law do not necessarily guarantee pub- paigns from three weeks to two weeks V.S. Naipaul has described it) – who lic understanding and support for and the other to extend reservations really are the people? For me, they are those rights; such understanding or to Dalit Christians. The proposed all typified in that great cartoonist awareness needs to be inculcated, and ordinances embodied the provisions Laxman’s ‘Common Man’. Not too this is only achieved by meaningful contained in two Bills, which the gov- long ago a former President of India education. ernment had sought to introduce on 12 unveiled in Pune a eight-feet high March 1996 (the last day of the Tenth bronze statue which was extolled as Lok Sabha), but was disallowed by the ‘worlds’ tallest metal statue of a There is another reason why we the Speaker (Shivraj V. Patil) because cartoon character.’ It typifies – as no cannot fashion another constitution. he said it could not merely be intro- other single manifestation does – the We are living in an age when there is duced and left in limbo pending a quizzical doubts of the common man an all-pervading rights culture. The dissolution. about whom this great document is experience of sixty years of working for: every generation throws up its a written constitution has shown that common man: a generation being a ‘rights culture’ generates greater After the dissolution of Parliament, defined as that whole body of indi- dissatisfaction amongst persons pro- the ordinances were then sent to the viduals born about the same period (a pounding different sets of rights. For President – they were in the same generation as you know is usually instance, to what extent should the terms as the Bill that was not permit- computed at 30 years). claim based on merit and on the fun- ted to be introduced by the Speaker. damental right of equality be ignored? The President, Shankar Dayal Sharma, How far does the Constitution, truly to his credit sent the ordinances back By this computation there have been interpreted, direct us to go? How to the government of the day with a two successive generations since soon are we to atone for the oppres- note dated 19 March 1996 that read: 1950 and if we are to show the present sion of centuries? Should we go on ‘I would like to inform you that generation (typified by the ‘common equalizing downwards? And (then) independent of the relative intrinsic man’) this document of governance or for how long? These questions surface merits of the Ordinances proposed, tell him about it, he is bound to ask, on periodically. promulgating these Ordinances behalf of the common people he typi- Yet the under-representation of would appear to be inappropriate fies: ‘Tell me, what has it done for us? the underprivileged in public employ- and contrary to the canons of How are we better off?’ ment continues to remain highly dis- constitutional propriety in view of In answer, we can perhaps point proportionate and, as Ralph Bunche, circumstances existing at this par- to the Chapter on Fundamental Rights the man who was closely involved in ticular juncture.’ (part III), which owed much to the drafting the Charter of the United His successor, President K.R. standard setting Charter of the United Narayanan, acting under the proviso Nations (1945) and the almost con- 2. Right Honourable Lord Justice Sedley, 91 Freedom, Law and Justice. The Hamlyn to Art. 74(1) also, returned for recon- temporaneous Universal Declaration Lectures, Sweet & Maxwell, London, sideration the proclamation seeking to of Human Rights (1948). But has 1999.

SEMINAR 615 – November 2010 Nations once said, ‘Inalienable rights down there, became distinctively it would have made a difference to our cannot be enjoyed posthumously.’ Indian in the course of a few gene- attitudes and our national conscious- Amid all the controversy and rations. Indian converts to some of ness if we had stressed also the respon- vacillation one thing is certain: as long these religions never ceased to be sibilities of one citizen to another. as poverty continues to stalk the land Indians on account of a change of The subsequent inclusion in the and gross disparities between the rich their faith. They were looked upon Constitution of Part IVA (‘Fundamen- and poor remain, the ideal of an egali- in other countries as Indians and tal Duties’) has not inspired much tarian society envisaged in our basic foreigners, even though there might enthusiasm amongst the citizenry, document of governance will remain have been a community of faith possibly because this part was enacted a dream. Whatever the nation’s karma, between them.3 during the period of the forced Inter- the founding fathers cannot be faulted A few years after Panditji wrote nal Emergency of June 1975. That for a lack of idealism, nor can provi- his Discovery of India, the Human period of the Internal Emergency was dence. Truly, it is not in our stars but Rights Commission of the UN carried a period when constitutional function- in ourselves that we are thus. out an inquiry into the theoretical aries failed us – from the President It is not because of our Consti- problems raised by a Universal Dec- downwards. And it is good to recall tution but despite its provisions that laration of Human Rights. A question- this once in a while. we have failed to achieve what naire was circulated to various Why did all of them – ministers, were naively assumed (in 1950) to be thinkers and writers of member states parliamentarians fail us? Was it a achievable goals. We have abolished of UNESCO; they were asked, as sense of fear? Some in high places did untouchability and outlawed back- individual experts, to give their views. confess to it. I do not think this is true wardness in the Constitution of India One of the chosen experts was of persons holding key positions of (Article 17). But alas, most of us have Mohandas Gandhi. He responded in power. For them, the only explanation not eliminated it from our hearts. We a brief letter to Julian Huxley, the is that they were not sufficiently have somehow forgotten our heritage Director General of UNESCO. The let- imbued with the spirit of a written of accommodation and tolerance. It is ter was written in May 1947, in a mov- constitution. The constitution you see time we remembered. ing train (those were troubled times doesn’t work – never works – on its – the days before India’s independ- own: it depends on the wisdom and ence). This is what Gandhiji wrote: statesmanship of its constitutional Writing in the quiet seclusion of I learnt from my illiterate but wise functionaries. a British prison in 1944 (during his mother that all rights to be deserved ninth term of imprisonment for revolt- and preserved came from duty well ing against the British), Jawaharlal done. The very right to live accrues Constitutional functionaries com- Nehru contemplated ‘the variety and to us only when we do the duty of pletely failed us during that June 1975 unity’ of India. He wrote: citizenship of the world. From this Emergency: we could perhaps say, in In ancient and medieval times, the one fundamental statement, per- retrospect and in extenuation that this idea of the modern nation was haps it is easy enough to define the was because times were ‘bad’. But non-existent, and feudal, religious, duties of Men and Women and cor- constitutional functionaries have racial, and cultural bonds had more relate every right to some corres- failed us in other times as well, even importance. Yet I think that at ponding duty to be first performed. in the good times. For instance, when almost any time in recorded history Every other right can be shown to the Janata government came to power an Indian would have felt more or be a usurpation hardly worth fight- in March 1977 on a tidal wave of pro- less at home in any part of India, and ing for. test against the phoney Emergency (of would have felt as a stranger and June 1975). alien in any other country. He The Janata Party had always would certainly have felt less of a When we gave ourselves a consti- castigated the Congress Party and the stranger in countries which had tution it was certainly good to provide Centre on the misuse of Article 356 of partly adopted his culture or reli- rights enforceable against the state the Constitution (imposition of Presi- gion. Those, such as Christians, and state agencies. But I believe that dent’s Rule). But gaining power at the 92 Jews, Parsees, or Moslems, who Centre for the first time they manipu- professed a religion of non-Indian 3. Jawaharlal Nehru, The Discovery of India. lated that article to suit their political origin or, coming to India, settled Signet Press, Calcutta, 1946, pp. 55-57. purpose.

SEMINAR 615 – November 2010 In May 1977 a circular was power was other than the one in power constitutional liberalism amongst its issued by the Home Minister Charan at the Centre. But all this was said inhabitants. Constitutional liberalism Singh, a constitutional functionary in when it was too late to have any prac- is about government’s goals rather Morarji Desai’s Council of Ministers. tical effect. than the procedures for selecting Under its terms, chief ministers of Because when the Janata wave governments. nine state assemblies were asked to had petered out, and Indira Gandhi’s Democracy, and a written cons- recommend dissolution of their res- Congress Party came back to power in titution, is simply not enough. In an pective state legislatures even though 1980, it was the Supreme Court judg- age of images and symbols, elections in respect of some of them (the state ment of May 1977 (in the Rajasthan – so essential for every representative assemblies of Rajasthan, Orissa and case) that was used to invoke Article democracy – are easy to capture on Punjab) the constitutional term of five 356 and to dissolve all the nine state film, and be transmitted through the years had not then expired (the Union assemblies composed at this time of a media to various parts of the world. In Law Minister endorsed the circular of majority of Janata Party members! February 1999, and in May 2004 and the Home Minister saying that a clear President N. Sanjiva Reddy again in May 2009, the world wit- case had been made out for the disso- signed the Proclamation – with some nessed on television flashes of six to lution of assemblies of nine Congress hesitation. He is reported to have said: seven hundred million voters in India ruled states and there was need for ‘Given the precedent, how could I say going to the polls, once again. It did holding fresh elections). All this was No.’ Granville Austin records in his help to renew one’s faith in the demo- a pressure tactic not envisaged by great book, Working a Democratic cratic system. But we must ask our- either the text or the spirit of the Constitution, that Sanjiva Reddy also selves this: how does one televise the Constitution. But it worked. said: ‘I told Indira that Morarji had rule of law? Because the rule of law is When the circular was chal- been wrong in principle and to dis- the expectation of the electorate after lenged by the concerned state govern- solve again was still wrong.’ But even elections, and yet this is hardly ever ments, regrettably (in retrospect), our with this mental reservation, the Presi- reported or pictured – when it is, it Supreme Court endorsed approval (in dent went along and signed the pro- only reflects a string of broken elec- May 1977) of the Home Minister’s clamation! These are but a few of the tion promises. circular – in the case of state of Rajas- glaring instances when political expe- There is little glamour in life than vs. Union of India (by a majority diency of the moment was made to after elections! Democracy, without 5:2) paving the way for the imposition prevail over adherence to constitu- constitutional liberalism, pays only of President’s Rule under Article 356 tionalism and constitutional norms. lip-service to the rule of law and in its in all the nine states, and rudely shak- You see there is much pathos in wake brings with it erosion of liberty, ing the balance of the federal structure a democracy – in fact a great deal of abuse of power, ethnic division, and under our Constitution. it. The tragedy of a free people freely strife. participating in electing governments, and then bemoaning their fate, is often The judgment also exhibited the truth seen as the tragedy of freedom squan- We must be wary of elected govern- of Justice Benjamin Cardozo’s oft- dered. But the alternative, the alluring ments wherever they function. And quoted remark that the hydraulic pres- alternative of a would be autocracy or we must strive in ways that are legiti- sure of great events do not pass judges dictatorship, is a far greater tragedy: mate, and with the assistance of inde- idly by! Because in March 1994, the the tragedy of freedom denied. pendent and fearless judges, to keep Supreme Court of India did say in a elected governments accountable. In larger Bench decision of nine judges this 60th year of the working of our (in Bommai’s case) that the view I believe that we all must learn to written Constitution, we must help to taken in the state of Rajasthan case differentiate between constitutional revive that spirit of consensus and ide- was erroneous: that the mere defeat of democracy and constitutional liberal- alism that inspired its drafting. We the ruling party at the Centre could not ism. The British rule in India, for ins- must help cultivate a spirit of consti- by itself without anything more enti- tance, did not provide a ‘constitution’, tutionalism amongst the people of tle the newly elected party which nor any ‘democracy’ for the people of India. As I see it, these will be the assumed power at the Centre to advise this vast subcontinent. But with the more important concerns of responsi- 93 the President to dissolve the assem- establishment of an even-handed jus- ble citizens of this vast country in the blies of those states where the party in tice system, it did stimulate a spirit of next decade.

SEMINAR 615 – November 2010 Comment Coming into its own THERE is a vast amount of good to say about the and, plentifully elsewhere in the text – have found Constitution and Indian achievements under it. Regret- reality with the judiciary rather than in legislatures. tably, there is also much to say about Indian sins Public speech, gossip if you will, focuses on corrup- of omission. tion and ethical lapses among politicians, when it is The great achievement is keeping the Constitu- not devoted to the size of an individual’s income. tion alive, maintaining its stature as the lodestar for so The question is still asked: Why does the many millions of citizens in their search for economic Constitution continue to fail us? The answer: We have and social justice through the courts and the vote – ourselves to blame, is seldom heard. That sober critic, which is being extended through panchayats. The pau- Madhu Limaye, warned of this years ago. city of improvement in the well-being of the mass of I take no comfort in the awareness that citizens, particularly among the tribals and the lower American government, politics and economy are in a castes among agriculturists in the countryside, is the similarly parlous condition. It seems that human ‘great undone’, to borrow Upendra Baxi’s phrase. beings construct temples called democracies, but Here, public figures in government and among the then pay insufficient attention to those who become upper castes and intellectuals have defaulted in their the clergy. responsibility to the mass of their fellow citizens who Yet, temples survive after the clergy has died. they, in general, have blissfully ignored. It continues And a fresh lot of officials replaces them. The major to amaze me that so many Indians speak of India as a change comes in the energy of the worshippers in the great power, globally, when the core of the population temple. They are taking the Constitution’s promises is poverty-stricken and denied economic and social seriously. They are organizing themselves in voluntary justice and meaningful political representation in organizations, led by individuals whose purpose is the legislative bodies and executive branches in the states defence of citizen’s liberties and rights. In villages, the 94 and in New Delhi. people have sensed the power that panchyats offer, now The promises in the Constitution – the Preamble, and in the future. Women are increasingly active in the Fundamental Rights, and the Directive Principles them, even escaping the patronizing attitudes of their

SEMINAR 615 – November 2010 husbands and attempts by sarpanches to dictate out- comes of meetings. The biographer of the Indian The scent of political influence is a powerful constitution perfume wafting across the country, even affecting tribal areas in western and eastern Maharashtra and Granville Austin must surely feature in any retrospec- Chhattisgarh. Reform comes slowly, however, and for tive of India’s Constitution at sixty. As the Republic’s it to arrive citizens and activists must win bitter strug- Boswell, Austin provides us with an authoritative gles against big corporations, big money, and politi- account of its founding. As a chronicler of subsequent cians – local and central – who are indifferent to constitutional developments, he has taught us a great citizens’ interests and hungry to line their own poc- deal about India’s post-independence rulers, their kets. For there to be real change the ‘perfume’ must choices and failures. A charming man with sparkling enter the Lok Sabha and the cabinet in New Delhi. eyes and a semi-Bernard Shaw-style beard, he insists The character of Centre-State relations has on being called ‘Red’. His hair, the source of that altered greatly since the adoption of the Constitution. nickname, has long grown white. Yet, Austin, now an The Centre began with the firm belief that ‘it knew best’ octogenarian living in Washington DC, still remains and that villagers were incapable of self-governance, constructively engaged with India, as his contribution and that local and state governments were impossibly to this issue demonstrates. inept. Over the years the leopard of New Delhi has Growing up in Vermont, Austin studied Ameri- changed its spots. The home ministry tempered its can literature at Dartmouth College. He later obtained dictatorial ways; state governments, especially in the his doctorate in Indian history from Oxford. Curiously, South, the Deccan and Kashmir exerted great pressure though, he has never held a fulltime academic position. on New Delhi to loosen its political reins; the Congress He describes himself as an ‘independent scholar’, hav- Party – except during Indira Gandhi’s tenure – had ing been a fellow or consultant with entities as diverse diminished influence in the states; and state political as the U.S. State Department and the Rajiv Gandhi parties began to fill these vacuums. Foundation. Austin’s tryst with India began more than The Constitution came into its own. Its provisions fifty years ago. His attempt at archival research was allowed the migration to the states of political influ- quickly stonewalled by unobliging bureaucrats. So, he ence, and the exercise of initiative for economic wrote to Nehru, who reportedly interceded on his development. State and regional political parties behalf. To immerse himself fully in the project, appeared in New Delhi in Lok Sabha representation and Austin moved his family to New Delhi in the early eventually in national coalition governments. The nation 1960s. He travelled across the country interviewing jumped ahead. The Sarkaria Commission, established surviving members of the Constituent Assembly, and in 1983, produced the first, exhaustive, authoritative reviewed thousands of documents, including several study of Centre-State relations. New Delhi awoke to unpublished personal papers. He even managed to the reality that Indian unity was a national matter, that persuade President Rajendra Prasad to share his ‘most maximum participation among citizens and political valuable files’ on the Assembly’s deliberations. forces was unifying, not divisive. Exceptions to this In The Indian Constitution: A Cornerstone of rule were manageable, although the manifestations of a Nation (1966) Austin describes how the Assembly the moment could be disgraceful, even ugly. conceived, debated, and adopted the world’s longest As a result, India has become united politically national charter. It was, he says, ‘the greatest political and more prosperous economically. The constituencies venture’ since the adoption of the U.S. Constitution for the Constitution have become firm – the armed in 1787. The book is a fascinating narrative skill- forces, the media, the minorities, the state govern- fully weaving together debates in the Assembly’s ments, and the political classes, which have found plenary sessions with committee deliberations that their interests can best be served through the and other behind-the-scenes confabulations. Austin’s Constitution. reconstruction of events is so compelling that it is Democracy’s temple, in the process, occasion- ally lost chips and statuary while representative gov- * I am deeply grateful to Ramachandra Guha, Tarunabh Khaitan, ernment, despite its blemishes, remained sturdy. Sunil Khilnani, Arun Thiruvengadam and Benjamin Yong, for their 95 comments on an earlier draft. I write this article in my personal capacity, and my opinion should not be attributed to my employer, Granville Austin the World Bank.

SEMINAR 615 – November 2010 difficult to imagine that he wasn’t himself present at important to acknowledge their shortcomings and the scene. examine the long-term impact of their biases. Cornerstone received glowing reviews from the Cornerstone’s most controversial and pregnant very beginning, although one British reviewer accused sentence is that the ‘Indian Constitution is first and Austin of a ‘silly petty anti-British animus.’ Perhaps foremost a social document.’ The Constitution, the greatest praise for Austin, mixed with critical Austin emphasizes, embodies the Assembly’s desire insights, came from Upendra Baxi, then a junior law for a social and economic revolution through the professor. In an extraordinary review of over 150 Directive Principles of State Policy. Austin does not pages, Baxi declared that as the most definitive study comment on the wisdom of this unorthodox approach. of Indian constitution making, Cornerstone had dis- Revolutions, even when peaceful, are typically messy placed all existing ‘pseudo-literature’ on the subject.1 affairs. By contrast, constitutions are primarily con- Austin credits an ‘oligarchy’ comprising Nehru, cerned with establishing political stability and legal Patel, Prasad and Azad for the Assembly’s success in order. What were the founders thinking when they finalizing the Constitution. As ‘heroes of the freedom placed radical economic and social reform objectives movement’, the oligarchs commanded great political alongside sweeping protections for individual and capital and shrewdly enlisted several non-Congress- group rights? Did they not foresee the potential for men like B.R. Ambedkar and K.M. Munshi to expand constitutional gridlock by making the Directive Prin- the Assembly’s representative character. In an appen- ciples ‘fundamental’ in governance, even while insist- dix to Cornerstone, Austin provides a list of the ing that all state action must remain consistent with Assembly’s leading lights. With exceptions like the Fundamental Rights? Ambedkar and Azad, they were mostly upper-caste Austin points out that by adopting parliamentary Hindu lawyers. But there are some major omissions democracy, the Assembly voted to retain a system too, like Jerome D’Souza, the Jesuit who played a key that was both familiar and progressive. In so doing, he role in the discussions on religious freedom and believes that it wisely and decisively rejected minority rights. And the list includes only one woman, Gandhian ideas for village-based government. It is true Durgabai Deshmukh, a prominent social activist. that Cornerstone went to press during the high era of Although Cornerstone acknowledges the contribu- Nehruvian parliamentarianism. Still, one wishes that tions of Deshmukh and other women members (there he had speculated how India might have fared under a were nine in all), it has not stopped scholars and com- different system. Furthermore, as Baxi points out, it mentators from continuing to freely use that patently may be that the so-called Gandhian proposals were erroneous term ‘founding fathers’. principally concerned with securing greater decentrali- Unlike the American constitutional debates, zation in decision-making, rather than with offering an Austin asserts, the Assembly’s proceedings revealed alternative blueprint for a panchayat republic. no ‘deep seated conflicts of interest.’ But, as Austin Cornerstone is studded with elegant turns of himself acknowledges, language was a particularly phrase: ‘Fundamental Rights were to be framed among divisive issue. Much to the irritation of members from the carnage of fundamental wrongs.’ ‘Nehru, speak- the South, the ‘Hindi wallahs’ insisted that their mother ing thoughtfully, rambled typically to the heart of the tongue, to the exclusion of all others, become India’s matter.’ ‘If the beacon of the judiciary was to remain official language. This resulted in what I believe was bright, the courts must be above reproach.’ a very significant constitutional ‘birth defect’. Corner- This contributed to its runaway success, espe- stone does not critically analyze the Assembly’s social cially with the legal profession. Barely a few months composition or its pathologies, including its patriar- after Cornerstone hit the bookshelves, the Supreme chal impulses and class prejudices. It would be unfair Court referred to it in its 1967 watershed decision, to expect Austin to have undertaken such an inquiry at Golak Nath. In 1973, Cornerstone was repeatedly cited a time when it was far from the mainstream in politi- before the thirteen-judge Kesavananda Bharati bench, cal historiography to do so. Yet, this task is now an which reconsidered, and then overruled, Golak Nath. urgent and pressing one. Although our founders were Austin was so persuasive that twelve judges mentioned probably our ‘greatest generation’, it is, nonetheless, Cornerstone in their opinions. The Court also relied 96 on Austin in three other leading cases: Indira Gandhi 1. Upendra Baxi, ‘The Little Done, The Vast Undone: Reflection on Reading Granville Austin’s The Indian Constitution’, Journal (the prime minister’s election appeal); Rajasthan of the Indian Law Institute 9, 1967, p. 323. (validity of president’s rule in Congress-led states) and

SEMINAR 615 – November 2010 Menaka Gandhi (the scope of the Constitution’s life but also that democracy would be meaningless in the and liberty protections). former’s absence. Similarly, without national unity, A divided Supreme Court relied on Austin when neither social reform nor democracy would be feasi- examining key provisions of the Forty Second Amend- ble. Attractive as this metaphor might seem, it is diffi- ment in the 1980 Minerva Mills Case. Sprinkling its cult to imagine that it was the underlying operational opinion with Cornerstone quotes, the majority struck basis for Indian constitutional politics. down the amendment for disturbing the constitutional Austin furnishes a detailed account of the harmony between Fundamental Rights and Directive contests between the courts and the legislature over Principles. Dissenting, Justice Bhagwati also used constitutional freedoms. (He covers, among things, the Cornerstone to reach a different conclusion. He chose Crossroads case involving this journal’s founders). to uphold the amendment, expressly citing Austin’s Nehru was frustrated by judges who resisted his thesis holding the Constitution as a social document. redistributionist socio-economic agenda. But rather This provoked a sharp rebuke from H.M. Seervai, the than tampering with the judiciary’s independence, eminence grise of Indian constitutional law. Seervai Nehru piloted constitutional amendments to overcome complained that Bhagwati had overlooked Corner- adverse verdicts. Abandoning her father’s reticence, stone’s disclaimer that it was a political history rather Indira Gandhi directly targeted the courts. Yet, as than a legal treatise. Notwithstanding Seervai’s admo- Austin approvingly recounts, despite Indira Gandhi’s nition, Cornerstone continued to embellish the court’s repeated attempts to create a ‘committed judiciary’ and opinions: Bhim Singhji (endorsing the book’s ‘reveal- restrict judicial powers, the Supreme Court erected the ing’ summary of the Assembly debates on property and ‘basic structure’ firewall to protect the Constitution compensation), S.P. Gupta (Austin’s views on judicial from partisan abuse. independence), and Ashoka Kumar Thakur (Corner- Reviving his role as Austin’s chief admirer and stone on separate electorates). Its quotations have critic, Baxi produced a shorter but far more scathing also been included in dozens of High Court decisions, review of Democratic Constitution.2 Noting Austin’s including the historic 2009 Naz Foundation case. canonization by bar and bench, he set out to unpack Austin wrote a magisterial sequel to Cornerstone the ‘Gospel according to St Granville.’ Baxi praises the in 1999. Working A Democratic Constitution: The book for seeking to restore constitutional practice to Indian Experience was published just as the NDA the centre of Indian development, but criticizes it for government appointed a so-called constitutional ignoring state-building in India and subaltern and review commission. In it, Austin describes the Cons- Dalit perspectives. titution’s ‘working life’ from its inauguration until Baxi accuses Austin of diminishing the Emergen- Indira Gandhi’s assassination. The book is filled with cy’s trauma by suggesting that ‘New Delhi in 1976 many interesting nuggets ferreted out from dusty files was not Berlin under Hitler.’ In fact, Austin’s principal and livened with vignettes from a large number of per- motivation for writing Democratic Constitution was his sonal interviews with politicians, lawyers and judges. deep concern that the Emergency had desecrated the India’s constitutional life is as vast and sprawl- Assembly’s shining legacy. He does India a great ing as its excessively long constitutional text. Conse- national service by investigating and revealing the iden- quently, Austin has to, and does, cover several diverse tities of those who carried out the Emergency’s greatest subjects: federalism, free speech, preventive detention, act of vandalism, the Forty-Second Amendment. It is the Emergency, elections, and the role of governors. with obvious relief that Austin describes how a post- Yet he maintains a firm grip on his subject matter, Emergency Parliament and Supreme Court helped neu- supported by forensic research and extensive reading. tralize the amendment’s most pernicious provisions. Unfortunately, because the book stops at 1984, In Cornerstone, Austin laments the difficulties Austin is not able to address Ayodhya, secularism, and of pursuing historical and legal research in India. Sadly, reservations, issues that dominated the national dis- more than four decades later, those difficulties remain. course when his book was released. In a remarkable bibliographic coda, Austin painstak- Democratic Constitution’s analytical framework ingly describes the unpublished materials that he is based on the so-called ‘seamless web’ of unity, demo- cracy, and social reform. India’s founders and its sub- 2. Upendra Baxi, ‘Saint Granville’s Gospel: Reflections’ (review 97 of Granville Austin’s, Working a Democratic Constitution: sequent rulers, Austin argues, understood that social The Indian Experience), Economic and Political Weekly 36(11), revolution could not be pursued without democracy, 17 March 2001, pp. 921-30.

SEMINAR 615 – November 2010 utilized, and generously supplies leads for future Not least among these suggestions is a more neu- researchers. Some of these materials are now freely tral use of terminology in the discourse on the subject, accessible through Shiva Rao’s Framing of India’s because one symptom of suppression is a loss of name. Constitution and the edited papers of Prasad, Nehru, Since the 1 January 1949 ceasefire, the peoples of the Patel, and Munshi. More rich and inviting information erstwhile princely state have been forced to qualify is available in the Transfer of Power and the Towards their citizenship by referring to themselves as citizens Freedom volumes. Taken together, all this data could of ‘Azad Jammu and Kashmir’ in Pakistan and ‘Jammu occupy a lifetime of profitable research for an Indian and Kashmir State’ in India. In politically partisan par- Gordon Wood or Joseph Ellis. Yet it is an abiding mys- lance, the term Indian or Pakistan ‘Occupied Kashmir’ tery why few, if any, authors or researchers have fol- is also deployed. Another tag with some currency is lowed Austin in studying India’s constitutional past and the short-hand ‘Kashmir’ (in this essay it is used to its relationship with the present. signify only the valley of Kashmir) deployed to denote the entire former state. But this usage tends to attenu- Vikram Raghavan ate the problem to the Valley, which is lazy opportun- ism at best. At any rate, all these terms prejudice the actual political status of the peoples of the region. Kashmir conundrum – year 63 In this context, the following template of nomen- 2010 marked the third continuous summer of passion- clature may prove more neutral: ‘State of Jammu and ate, resolute and unarmed protests in Kashmir. Each Kashmir’, to denote the historical territory of the state round of resistance – defined by huge numbers of its in its entirety consisting of Kashmir (including citizens pouring out onto the streets in protest – was Muzaffarabad), Jammu (including Mirpur), Ladakh, cemented by acts that betrayed a common attitudinal Baltistan and Gilgit. The 1972 Simla Agreement is a thread: that of taking the Kashmiris for granted. In pact tacitly precluding any active participation of the 2008, it was the accusation of a land-grab that chal- peoples of the state on both sides of the Line of Con- lenged the special land-rights prevalent in Jammu & trol (LoC). So the terminology spawned by it, ‘Paki- Kashmir. In 2009, it was the murder and alleged rape stan Occupied Kashmir’ and ‘Indian Occupied of two young women, Asiya and Nilofer of Tukroo in Kashmir’ ought to be amended to reflect merely the two Shopian. (The conclusion of investigations on the spheres of influence over this region and the forced deaths is still awaited.) In 2010, the protests were divide of the peoples of the state between them. sparked off by the killing, on 11 June, of 17-year-old Thus, for instance, we may use LoC West to denote the innocent bystander, Tufail Ahmad of Srinagar by para- J&K territories in Pakistan and LoC East to denote the military action. The response of the security forces J&K territories in India. since then has resulted, so far, in 110 innocent civilian There are many dimensions to the Jammu and deaths and a full-blown crisis. Delhi took almost Kashmir dispute; historical, legal and political. A key four months to respond to the crisis and, when it obstacle in the discourse on the Kashmir conundrum, did, unveiled an eight-point ‘package’ which barely reflected in part by the confused partisan terminology addressed the problem in Kashmir (the symptom) while just discussed, has been a lack of agreement on a defi- yet again ignoring the problem of Kashmir (the cause). nition of the legal and political dimensions the prob- The Jammu and Kashmir dispute is sixty-three lem. Speaking politically: India, unrealistically, denies years old this October. It has seen the peoples of the that there is a dispute; Pakistan, anachronistically, state geographically divided, culturally fragmented, hankers after the state to prove the efficacy of the two- economically confounded and politically sequestered. nation theory; and within the state of Jammu and Kash- It has retarded the ability of both India and Pakistan, mir, a not insignificant portion of the resistance has and arguably the whole of South Asia, to play any sig- unwittingly allowed its political cause to be gradually nificant role in the emerging world order. What are the and insidiously usurped by a pan-Islamism that not causes of this near-intractability and how ought we to only produces red-herrings but does more damage to reference it? In response to these questions, there is a Islam than all the combined bigotry of post-colonial need to confront the dispute without sweeping its com- politics.1 In the meantime, the peoples of the state on 98 plexities under the carpet. This essay suggests some both sides of the divide brought about by the war immediate steps in the journey to a lasting, practica- between India and Pakistan in 1948-49 continue to ble and just resolution. remain in limbo.

SEMINAR 615 – November 2010 99

SEMINAR 615 – November 2010 100

SEMINAR 615 – November 2010 Legally and constitutionally, Pakistan defines the The first complexity that must be taken into con- problem as the ‘unfinished business of partition’ and sideration is that J&K is a state that was created at an so uses the term ‘Azad Jammu and Kashmir’ for LoC historical cusp at which traditional monarchy, colonial West (somewhat disingenuously excluding Gilgit – realpolitik and an autochthonous instinct for survival Baltistan from the argument) theoretically stating that converged to give birth to a sovereign state between it is ‘Azad’ or ‘free’ from Pakistan per se. India refers to 1835 and 1846 in response to imperial expansion. Like LoC East as ‘Jammu and Kashmir State’ reflecting its the other states along the pan-Himalayan massif, position that the question of accession is ‘closed’, the Jammu & Kashmir was also alternately, an ally, an only ‘unfinished’ part being the retrieval of LoC West. irritant and an adversary of British interests. After India’s interpretation of the relationship of the [former independence, India and Pakistan both inherited this princely] state of Jammu and Kashmir in relation to ambivalent relationship to J&K.4 Unique in the case the Union of India is thus more nuanced. It argues of J&K was that it became an enviable entity and very that whereas the other princely states of undivided sub- quickly a critical player in the Great Game of the 19th continent acceded to and merged with the Republic of century because of its contiguity with Central Asia. India and adopted its constitution, Jammu and Kash- Today too this contiguity, due to the large reserves of mir State did not do so and so its relationship with the gas and oil in Central Asia and the relatively weak post- Union is different from that of the other states.2 Cold War states of the region, highlights the urgency The diplomatic lore of the discourse between of resolving the J&K dispute. India and Pakistan on J&K tells how, prior to the 1989 Culturally, the creation of the state has accentu- insurgency, the officials of the two countries, even as ated the serendipitous convergence of Hindu, Buddhist they postured belligerently in public, scoffed at their and Muslim civilizations within its borders. This has own countries’ positions during cocktail parties and, resulted in multiple identity contestations in which all in a patronizing stance, referred to the Kashmir dispute the three parties involved – the state’s constituent parts, as a ‘simple’ one, easily solved provided their respec- India and Pakistan – have a valid and vested stake. The tive governments got down to it. To cite just one seeming desire of the United States, in its own inter- example, even as early as the 1960s there was a est, to assign India a larger role in the quickly harden- flurry of backroom activity which, however, came to ing Pakistan and Afghanistan ‘quagmire’ is yet another nought.3 indication of the political significance of J&K. It is The reason for this and many other failed these geographical, cultural and political realities that attempts is that the problem, of course, is not simple. have made J&K a difficult bone of contention. A lack of understanding of its historical idiosyncrasies, Another complexity that asserts itself is the legal legal ambiguities and political denials have marred the one having to do with the peculiar circumstances of lives of millions of J&K’s citizens over the last six the end of British rule in South Asia. The colonial decades and more. Despite admonishments not to ‘drag power structure was as elaborate as it was deep-rooted history’ into political disputes originating from the in its use of modern and traditional political institutions colonial experience and to look to the future – to consolidate British rule. Its exit from the subconti- admonishments, significantly, from past colonial pow- nent left behind a trail of legal issues in the former ers – history and law are best held up as candles rather princely states, all of which were addressed conclu- than snuffed out by tactical opportunism. Otherwise, sively in 1947 or soon thereafter, with the exception solutions so determined will continue to haunt us and of the State of Jammu and Kashmir. To ignore these generations to follow. Complexities must be con- legal ambiguities, or explain them away through fronted and then unknotted in the light of present-day political opportunism, is to further complicate the realities; denying them is to risk still-born solutions. problem; witness the 1972 Simla Agreement which attempts to transform the dispute into a bilateral one 1. One such, for example, is for the disaggregation of the former 4. A doctoral dissertation treatment of the Himalayan states after princely state based on the arguments of the religious right in the decolonization of South Asia would make a valuable contribu- India, Pakistan and the State of Jammu and Kashmir. tion to the study of South Asian politics. Whereas the British 2. See A.S. Anand, Development of the Constitution of Jammu and Empire discussed this in an energetic debate between proponents Kashmir, 1980, New Delhi, p. 172 of a ‘forward policy’ and the opposite of it to secure its empire, both 101 3. Cf. Lars Blinkenberg, India – Pakistan: The History of Unsolved India and Pakistan appear to have ignored the importance of Conflicts, (2 Vols.), 1998, Odense University Press, Denmark, this natural ‘security’ wall to place before the world a de-stabilized Vol. I, pp. 186-198 subcontinent. (See below)

SEMINAR 615 – November 2010 and the 1975 Accord which presumed to resolve it and its attendant misery, that has been forced on the unilaterally. The convulsions of the last twenty years peoples of the state’s constituent parts for the last urge us to learn the lessons of good law. six decades. It is this that gives the political definition In the regional political arena, which is the third of the conundrum its locus standi. complexity that informs this vexed conundrum, it has Should the terms of reference be conceded on to be acknowledged that the peoples of J&K, under the ethno-cultural grounds, its legal resolution would have cover of its status of uncertainty, have been deprived to be based on a pre-1840 premise, by which time of their political rights in their fullness in all five cons- Baltistan and Ladakh had come within the ambit of tituent parts – Gilgit, Baltistan, Ladakh, Kashmir and South Asia through the Dogra military invasion, fol- Jammu – over the last six decades. Delhi and Islamabad lowed by Kashmir a little over a half a decade later took these steps to bolster their own positions, to the through an Anglo-Dogra mercantile conquest. So it detriment of the inhabitants of J&K, following the cannot be emphasized enough that the whole of the Simla Agreement. And if carefully examined, the real state must be put on the table for discussion if there is problem today is that of all five regions, in one form or to be a comprehensive resolution. another, demanding these political rights – and thereby Clearly, the journey towards the resolution of the civic amenities, economic benefits and a predictable J&K problem is a long one. Despite the temptation to vision for their futures – be restored to them legally leapfrog over thorny issues, it is imperative that it not and transparently. Both India and Pakistan, during be rushed. This too is an important term of reference: the last six decades, have qualified these rights in take it slow. All long journeys begin with a single step. drawing their arguments from territorial acquisitive- Today there are reasons to quickly shift the status quo ness. Pakistan has done this by perpetrating wars and by side-stepping complexities. The United States may a proxy insurgency,5 and India through bracketed elec- be looking for a proxy partner, in India, to clean up its tions and proxy governance. Pakistan-Afghanistan mess. India’s salience on the All these political deceptions too will have to world-stage has increased significantly enough to be confronted. Matters have reached a head. The make its permanent membership in the United Nations status quo ante is no longer acceptable in 2010. Con- Security Council a realistic goal. And Pakistan sees the currently, the politics of manipulation, denial and law of diminishing returns asserting itself in the propa- non-J&K centric (or exclusively Delhi-Islamabad ganda war against India that drives its Kashmir policy. centric) responses also do not work. The parties to the All these global actors, it appears, would prefer dispute must begin a dialogue that will be substantive, a quick decision. Meanwhile, in an intra-state context, uninterrupted and have the future of all the peoples of the peoples of Jammu and Kashmir stand fragmented J&K at its core. and alienated. Add to this the geographical location What then are the minimum terms of reference of Jammu and Kashmir in relation to a fermenting Cen- for any solution-oriented discourse on Jammu and tral Asia and an ambiguously evolving South Asia. It Kashmir? The first of these is that any discussion must is clear that the peoples of J&K cannot afford an take into account Jammu and Kashmir in its entirety. instant decision about their future. They will under- This stipulation of considering all of the state is often stand that the decision cannot be made solely in the interpreted to be the romanticized euphemism of interests of competing powers but must be an organic ‘independentists’6 in support of their agenda. Never- resolution that takes the present-day realities into theless, it is a demand necessitated by historical and account. And resolutions take time. legal realities. Unless the whole of the state is dis- If an important point of reference for dialogue cussed, neither India nor Pakistan can justify the limbo, on J&K is not to rush into sudden decisions about its future, the lesson of the last three summers is that it is 5. This must be accepted, albeit without prejudice to the by now time to take it head on; and, critically, that the prob- well-accepted fact that the 1989 insurgency was indigenously lem will not go away. inspired in Kashmir as an immediate and spontaneous reaction to rigging in the 1987 LoC East elections, with Pakistan rushing in to 6. The discourse on the status of the state has become acutely ‘fish in trouble waters’, adding yet another dimension – aggravated factionalized in its six-decade history, especially in Kashmir but violence and cross-border small arms proliferation – to the prob- also in Gilgit-Baltistan and the Mirpur-Muzaffarabad stretch in 102 lem of J&K. For a comprehensive scholarly treatment of this LoC West. For a good summary of the various factions and their phase in the history of J&K, see Sumantra Bose, Kashmir: Roots genesis, especially in Kashmir, see SumantraBose, op cit., as also of Conflict, Paths to Peace. Harvard University Press, Cambridge, his Contested Lands. Harvard University Press, Cambridge, MA, MA, 2003. 2007, pp. 154-203.

SEMINAR 615 – November 2010 Soon after he was sworn in as chief minister, these entities, has resulted in its voices being a virtual Omar Abdullah called for a start to the dialogue on Babel of opinion. Dialogue with any pre-conditions is the resolution of the political dispute of Jammu and to ensure that it does not begin. Kashmir, an unusual step for a sitting chief minister. Next, the talks must address the political dispute But he went on during a speech in the October 2010 and not be subsumed by the economic and social symp- session of the state Legislative Assembly by stating, toms of its non-resolution. In the last year, Delhi has accurately, that while J&K had acceded to India, it arguably been at its most active in addressing the Delhi had not merged with it. It was a statement implying – Srinagar axis of the problem. However, this has been the classic definition of the radically federal status of neutralized by a basic assumption that the problem the state in relation to Delhi: namely, an association can be resolved by ‘packages’, be it economic, social defined by its voluntary surrender of sovereignty in or even political. A dialogic interface assumes a nego- only three areas of activity: foreign affairs, defence and tiated settlement. A package implies a one-sided communications.7 appeasement that could range from funding for deve- New Delhi responded to the three-summer cri- lopment to gift to bribe. Jammu and Kashmir’s vari- sis with an eight-point ‘package’, which was met with ous parts have been recipients of endless ‘packages’, scepticism in Kashmir, even as its political factions be they from Delhi or from Islamabad. clung to one clause in this package with some hope: The talks, thirdly, must be transparent but with- that of the appointment of a group of ‘interlocutors’ out prejudice to reasonable confidentiality. In the past, between them and Delhi. However, the absence of the lack of transparency has resulted in back-room any politician in the group of interlocutors, seen as a deals that presented the peoples of J&K with a fait necessity if the dialogue is to be serious, soon turned accompli. It did not work with the Simla Agreement the mood cynical. Meanwhile Pakistan, which could of 1972, the Beg-Parthasarathy Accord of 1975 or the have made constructive suggestions, has reacted with Agra Summit of 2001. It has even less of a chance of little more than canned calls for resolution and jingo- working today’s atmosphere of acute distrust and istic rebuttals of India. when the peoples of J&K are arguably amongst the Be that as it may, there is no alternative but to most politically conscious in all of South Asia. Confi- begin talks. Both Delhi and Islamabad must accept that dentiality will need to be tempered by an incremental the statements of the heads of government on the two inclusion of all the peoples of the state in its entirety sides of the LoC reflect the mood of the people. In the being informed about the structure, the basic assump- two statements, the status quo powers must see an tions and the arguments being proffered in any dia- opportunity to make a beginning. The first step will logue. have to be taken between Delhi and Srinagar, the epi- Finally, the dialogue must quickly include centre of this near-intractable dispute, even if it be with representation of and from the other constituent parts the announced interlocutors and with scepticism as of J&K: Gilgit, Baltistan, Ladakh and Jammu. Over a hand-maiden. This must be closely followed by the the decades, Delhi and Islamabad have steadily col- inclusion of Islamabad in the dialogue. luded to isolate the problem to take into account their Four specifications must inform this initial dia- interests and to Kashmir, the Valley. And the latter logue. First, the talks must begin unconditionally. Pre- being the most coveted, albeit territorially the small- conditions are often an indication of a pre-conceived est part of J&K, has unwittingly allowed itself to be end-game. Delhi’s discernable end-game has been a boxed in and contained. This has resulted in a truncated legalistic reference to accession. Islamabad has view of the problem and, if solved on that premise, invoked the emotive topic of religious identity. Mean- will result in a truncated solution. To allow this to play while the ethnic, cultural, linguistic and religious itself out would be to ghettoise Kashmir. This is dan- diversity of J&K, not to speak of the manipulation of gerous because it permits an ethno-religious interpre- tation of the dispute, which it is not. Moreover, it has allowed entry to puritanical, literalist, radical and 7. It is precisely Article 370 of the Indian Constitution that defines this mechanism which makes a distinction between ‘acceding’ to alien interpretations of Islam into a region sensitive India and ‘merging’ with it. Incidentally, Abdullah’s counterpart, not just in the context of India and Pakistan but also in the prime minister of ‘Azad Jammu Kashmir’, had made a similar the Central and South Asian milieu. 103 statement a few months earlier, implying that his constituency had options other than accession to Pakistan available to it. He quickly became a ‘former’ prime minister. Siddiq Wahid

SEMINAR 615 – November 2010 Books ARTICLES OF FAITH: Religion, Secularism, and analysis of religious freedom under India’s constitu- the Indian Supreme Court by Ronojoy Sen. tional framework, Sen reflects on minority educational Oxford University Press, New Delhi, 2009. institutions, the law on conversions, the essential prac- tices test, the personal law debate, and even performs THE intersection of law and religion in India makes a serious study of Justice Gajendragadkar’s judicial for a fascinating study, not least because of the preva- philosophy. The breadth of analysis undertaken is lence of personal laws. Although Duncan Derrett’s striking. On each of these issues, Sen provides a work continues to be the most distinguished contribu- rich descriptive account of the Supreme Court, and tion in this area, recent scholarship has provided manages to systematically organize the field of law important insights. Brenda Cossman and Ratna and religion in a coherent and comprehensive fashion. Kapur’s Secularism’s Last Sigh served to highlight the It is difficult to determine the boundaries of the field Indian judiciary’s inability to restrain the Hindu Right, of law and religion, but Sen’s work demonstrates the while Gary Jacobsohn’s more comparative approach significance of many underappreciated areas such as in The Wheel of Law depicted how democracies may the law on conversions, the rights of minority educa- embrace distinct models of secular constitutional tional institutions, and so on. design. Notwithstanding their important methodologi- Articles of Faith’s close reading of judgments cal divergences, both Cossman-Kapur and Jacobsohn provides an important account of how religious free- emphasized the problematic Hindutva cases, and their dom has been understood by the Supreme Court. For uneasy coexistence with Bommai. instance, in studying the doctrine of essential practices, Ronojoy Sen’s Articles of Faith shares with these we learn how the path to religious freedom has been contributions a desire to grasp the Indian Supreme paved through the interpretation of religious doctrine, Court’s conceptualization of religious liberty, and rather than through holding that judges ought not to acknowledges a distinct Indian model of secularism. sit as pandits. On the subject of minority educational But Sen’s goals are more ambitious than Cossman- institutions, Sen shows us how the state’s passion for Kapur and Jacobsohn’s, and his effort is a genuine regulating educational institutions has permeated such attempt to move beyond the Bommai/Hindutva case institutions as well, often at the cost of their personal studies. Sen’s project is illuminating on many levels, autonomy. and there are two central features of his argument. Sen’s chapter on Justice Gajendragadkar First, Sen posits that the Supreme Court has ‘furthered deserves special mention. Barring reflections on the reformist agenda of the Indian state at the expense Justice Khanna and judges of the public interest liti- of religious freedom and neutrality’ (p. xxxi). Second, gation era, Indian legal scholarship hardly ever focuses he suggests that ‘the Court has become an ally – on the judicial philosophy of independent judges. inadvertently – of the Hindu nationalists in their There are, admittedly, some legitimate institutional aggressive demands for homogenization and uniform- reasons for this – the tenure of a judge is typically too ity’ (p. xxxi). short to warrant serious analysis, and the Indian 104 Scholars of Indian law will notice that these two Supreme Court sits in separate courtrooms rather than conclusions are not entirely novel; but Sen’s attempt as a full bench. But despite these factors, studying a at reaching them is impressive. Undertaking a detailed judge’s interpretive attitude over a series of judgments

SEMINAR 615 – November 2010 can help us to better grasp the historical development of the court’s doctrine. Sen’s analysis of Justice Gajendragadkar makes this clear, and reveals how his judicial opinions reflected his complex views on reli- gion, tradition, and modernity. But although Sen provides an important and painstaking descriptive account of the Supreme Court’s engagement with religious matters, the book stops just short of asking what normative insights such an account may hold. For example, Sen’s chapter on the doctrine of essential practices makes it clear that in protecting religious freedom, the Supreme Court has found it necessary to construct a conception of religion. But the important question is whether this constitutes a necessary evil or irresponsible judicial behaviour. For religious freedom to be truly protected, must judges interpret religious doctrine or refrain from interpret- ing it? Similarly, while evaluating the Hindutva cases, one cannot simply consider the court’s interpretation of Hindutva and Hinduism or how its judgments came to further the cause of the Hindu Right. The more important question is whether democracies should regard the electoral space as a special arena and how the regulation of election speech impacts the right to political participation. Sen only brief considers this issue, leaving the reader disappointed (pp. 83-86). Further, on certain important issues, Sen devotes too little space to the nature of constitutional inter- pretation. On Article 30 for instance, Sen’s carefully explains the differences between Justice Kirpal and Justice Ruma Pal in TMA Pai (pp. 100-102). He does not, however, probe further to ask how their divergent techniques may be situated within larger interpretive debates; how different constitutional provisions inter- act with one another, and the degree of legitimacy that must be granted to the different forms of textual analysis performed. Like Cossman-Kapur and Jacobsohn’s works, Articles of Faith does not help us to locate Indian Church-State relations within the broader framework of constitutional theory. But it does, unlike Secular- ism’s Last Sigh and The Wheel of Law, do justice to the breadth and diversity of the Supreme Court’s engagement with religious matters. It gives us an insight into the complexity of this subject, and an indication of what issues we must confront. Ultimately this is what makes Sen’s work promising, and ques- tions at the intersection of law and religion in India so powerful. 105

Madhav Khosla

SEMINAR 615 – November 2010 In memoriam Arjun Sengupta 1937-2010 Arjun Sengupta, aged 73, academic, bureaucrat, diplo- lion (in 2005) were informal workers without any mat, parliamentarian, passed away on Sunday, 26 Sep- employment or social security worth the salt. And 80 tember 2010, in New Delhi. While he wore many hats, per cent of them belonged to what we categorized as all with remarkable ease and grace, I got to know him ‘poor and vulnerable’ households with less than Rs 20 closely only during the last six to seven years since per capita per day to spend on their daily requirements. 2004. He had then just been appointed by the Prime It is this single statistic which has caught the imagina- Minister as the Chairman of the newly constituted tion of the public and led to much debate, within and National Commission for Enterprises in the Unorga- outside the Parliament, on the meaning of India’s ‘shin- nized Sector. Towards the end of 2004, I joined him as ing’ growth path. a full time member. While working with him in the Behind this single statistic lay a great deal of commission, he once told me that he was taunted by detailed work that sought to unravel the world of some of his eminent friends as the head of a commis- India’s informal economy that is so pervasive from the 106 sion to look after ‘prostitutes, beggars and peddlers of point of the aam aadmi and their livelihood struggles. all sorts of things.’ How true! Because we later found Arjun Sengupta gave great intellectual and organiza- out that 92 per cent of India’s workforce of 457 mil- tional leadership to this vast body of work which the

SEMINAR 615 – November 2010 commission undertook resulting in the submission of that we believed would lead to a more equitable and ten major reports including the final synthesis titled broad-based growth process contributing to, among The Challenge of Employment in India: An Informal other things, much needed social cohesion and solidar- Economy Perspective. Working closely with him on a ity. This is because our work led us to an uncomfort- daily basis, I could see the academic in him coming out able finding that there is a social dimension to the sharply, questioning every stage of our analysis before problems faced by the informal economy rooted in the the conclusions were finally accepted. More often hierarchical structure of our society. than not, he would play ‘devil’s advocate’ just to make While Arjun Sengupta had spent a good part sure we were on the right track. Once the conclusions of his career advising the government on matters were finalized, however, he had no hesitation in going relating to finance, trade and commerce and diplo- public and defending them with his characteristic, per- macy, he later chose to work in the area of human suasive style. rights. He made signal contributions as Rapporteur to But he was not content to play the role of an aca- the UN Commission on Human Rights that also led to demic in the commission. He was a policy-maker par a series of scholarly papers on the Right to Develop- excellence. And he would push for specific policy pre- ment of which he became a sort of champion during scriptions for incorporation in the reports. He was also the last decade of his life. I see here an organic con- keen to ensure that such policy prescriptions on a nection with his interest in the right to development variety of issues given to us in the form of terms of and the special interest he took in formulating a de- reference, were internally consistent. And thus we lopmental strategy for the informal economy in our came up with a policy framework that we called a ‘stra- country. tegy of levelling up.’ This addressed the foundational At a personal level his achievements were quite issue of creating a ‘social floor’ to the working poor remarkable. Having earned a PhD in Economics from constitutive of basic and contingent social security, a the Massachusetts Institute of Technology in the early national minimum wage and minimum conditions of sixties, he proceeded to teach at the London School of work. Second, it addressed the task of promoting Economics and Politics and later joined the Delhi micro and small industry with particular focus on School of Economics until 1971 when he was lured upgrading and developing the vast number of existing (as he once told me) by the late P.N. Haksar to work clusters of industries and later converting them into for the Government of India. He worked as an eco- growth poles. nomic adviser in the PMO under Prime Minister Indira Third, the commission addressed the plight of Gandhi and subsequently took up several assignments, small and marginal farmers, critical because there is including as India’s Executive Director to the IMF, hardly any major programme or scheme focusing on Ambassador of India to the European Union and this segment of the population constituting 84 per cent Member Secretary of the Indian Planning Commis- of all farmers and close to half the operational land sion. But the ‘academic bug’ in him continued to be at holdings. Fourth, the enormous deficit in skill upgrad- work when he took breaks to teach at Oxford and later, ing and development and access to technology for the after retirement from government, as Professor at the small producers received special attention. Fifth, ac- School of International Studies, Jawaharlal Nehru Uni- cess to credit was found to be one of the major con- versity and Honorary Professor at the University of straints and the declining share of net aggregate bank Harvard and the University of Oslo. In August 2005, credit to the small sector was a matter of great concern. he was elected to the Rajya Sabha and served in many All this led to specific proposals such as the need for a parliamentary committees. At the time of his death he national minimum social security with a dedicated and was also chairman of three academic institutions empowered body, the creation of a National Fund for namely, the Institute of Economic Growth, Institute for the Unorganized Sector, an empowered body for skill Studies in Industrial Development, and Research development, to mention only a few. and Information System for Developing Countries, all I mention all these here to emphasize the located in New Delhi. contribution and the leadership of Arjun Sengupta. As one of the few who sought to address the While some of the recommendations were taken up concerns of India’s working poor with specific policy for partial implementation, he was disappointed – as proposals, he will be sorely missed. 107 many of us were – by the absence of appreciation of the overall logic and the need for an integrated approach K.P. Kannan

SEMINAR 615 – November 2010 Backpage LET us admit it. Most of us, and not only the govern- being asked to ‘accept’ the status quo vis-a-vis Ayodhya ment, despite ritual obeisance to our civilizational and the mosque, they are being offered no convincing heritage of peaceful co-living, were apprehensive assurance that Ayodhya will remain an aberration, about the fallouts of the long delayed (and awaited) never again to be repeated. Allahabad High Court judgement on the Ramjanma- It is instructive that despite the Sunni Wakf bhoomi-Babri Masjid title suits. The unprecedented Board being given title to one-third of the disputed site, deployment of security forces in sensitive spots across no one from the Muslim side is celebrating. Contrast the country, the curbs on bulk SMS mails, the feverish this with the elation, even if subdued, of the Hindutva pleas from leaders across the political spectrum for groups who have once again reiterated their ‘appeal’ calm, were all evidence of the explosive potential of to the Muslim community to come forward in a spirit an issue that has marked our politics and public dis- of reconciliation and help build a grand temple to Lord course for over two decades. Ram at the ‘holy’ site. There is, of course, no offer by The judgement, the ramifications of which are any Hindu group to help build another mosque to still sinking in, was a surprise. Equally, though the replace the one that was demolished. No matter relief is palpable, was the absence of organized public what ‘spin’ we give, it is difficult to deny that one side protest, even intemperate speech by the affected par- smells victory and the other defeat. Hardly a secure ties. So, is it that the Ram Mandir issue is now a matter basis for reconciliation and lasting peace, far less a of the past, its mobilizational potential over? Can we claim about justice. now look forward to a public discourse dominated by Most residents of Ayodhya, both Hindu and reasoned arguments rather than assertions of faith and Muslim, only want this issue to be given a deep burial hurt sentiment? And can we now assume a willingness so that they can safely resume their everyday lives. And on all sides to either effect a reconciliation or accept yet, they too are aware that their agency has been the judgement of the Supreme Court in the event that snatched from them, that they are now mere bystand- an affected party challenges the High Court verdict? ers in a larger drama being scripted by others – the Despite the ostensible calm and assertions by Hindutva groups, who want a grand temple to correct political pundits that the current generation, many born what they claim was a historic injustice and a blow to after the tumultuous days of the early 1990s, have national pride; the Sunni Wakf Board, worried about moved beyond such divisive (non)issues, and are the status of the many sites of Muslim worship, most far more concerned about issues of employment and specifically in Mathura and Varanasi; and the secular opportunity, such conclusions might be premature. intelligenstia, concerned about the intrusion of faith It is, for instance, unclear how the jurisprudence and belief in Indian jurisprudence and thereby the fate employed by the learned justices, which relies of ‘faith of Indian secularism. and belief’ as vital factors, especially on a question But, above all, spare a thought for the Hindu relating to a title suit in a property dispute, will play out faithful for whom Lord Ram, so far an illuminating in the future. Equally disturbing is the weightage given presence residing in their hearts, is now being con- to the assertion, what many historians refer to as a ‘con- verted into a historical personage with specific coor- tested fact’, that five centuries back the ‘disputed’ dinates in time and space. As the Supreme Court, where mosque was constructed after breaking a temple. This the matter will now land up, ponders over these diffi- while choosing to remain silent about the far more cult, if not irresolvable questions, one can only won- recent demolition of the mosque in contempt of court. der over the fate of the many janmasthans which dot To state sharply, both the surreptitious installa- Ayodhya. And of the future of a state which, in its con- tion of the statues of Ram Lalla in 1949 and the subse- tinuous pusillanimity and inability to take firm and quent consecration of a makeshift temple on the site timely action, permits a local dispute to assume of the demolished mosque in 1992 have been given a national dimensions, and thus redefine our understand- judicial imprimatur, in the process sidelining both faith ing of nationalism, secularism and democracy in ways 108 and claims to a place of worship on the Muslim side. It that can only disturb. should then come as no surprise that the Muslim faith- ful feel apprehensive, if not betrayed. Not only are they Harsh Sethi

SEMINAR 615 – November 2010