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A New Avatar for India's 'Basic Structure Doctrine'

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A New Avatar for India's 'Basic Structure Doctrine' 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
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