Experiments with law

Print edition : February 22, 2013

January 31, 1950: President Rajendra Prasad with members of the Union Cabinet, (seated, from left) Dr. B.R. Ambedkar, Rafi Ahmed Kidwai, Sardar Baldev Singh, Maulana Abul Kalam Azad, Jawaharlal Nehru, Rajendra Prasad, Sardar Vallabhbhai Patel, John Mathai, Jagjivan Ram, Rajkumari Amrit Kaur, Dr. S.P. Mukherjee. (Standing, from left) Khurshed Lal, R.R. Diwakar, Mohanlal Saxena, Gopalaswami Ayyangar, N.V. Gadgil, K.C. Neogi, Jairamdas Daulatram, K. Santhanam, Satyanarayan Sinha and Dr. B.V. Keskar. Photo: The Hindu Photo Archives

A student carries a Nepalese flag during a rally in Katmandu on May 23, 2012, demanding the drafting of the constitution on time. Photo: Niranjan Shrestha/AP

A study of the constitutionalism of the nine countries of South Asia, its roots in colonialism and its later revisions and omissions.

DICTIONARIES define the word “constitutionalism” as “a belief in constitutional government” or as “the belief that a government should be based on a constitution”. Philosophically, the term refers to the idea that a government can and should be legally limited in its powers and that its authority or legitimacy depends on it observing such limitations.

Both the literal and scholarly definitions of the term carry a prescriptive element in them. A descriptive definition, on the other hand, points to the sources of a constitution, as distinct from the limitations that a constitution imposes on a government, to make it legitimate. The study of both the sources and the limitations helps scholars to identify the constitutionalism of a country and its people.

Constitutionalism and constitutional morality are two sides of the same coin. In a perceptive essay published in Seminar recently, the scholar Pratap Bhanu Mehta suggests that there were specific elements of constitutional morality which B.R. Ambedkar, as the Chairman of the Drafting Committee, was concerned about during the proceedings of India’s Constituent Assembly.

These were liberty tempered by self-restraint, respect for plurality, deference to processes, scepticism about authoritative claims to popular sovereignty, and the concern for an open culture of criticism. The Delhi High Court in its judgment decriminalising homosexual behaviour in the Naz Foundation case added respect for diversity in sexual orientation as a significant aspect of this constitutional morality.

Scholars are naturally intrigued by how these aspects have influenced the constitutionalism of India’s neighbours. It may also be of interest to know how constitutionalism in India has, in turn, been influenced by the constitutionalism of other countries, including its neighbours.

The book under review adds to our understanding of both the descriptive and prescriptive aspects of constitutionalism of the nine countries that comprise South Asia, a civilisational and geopolitical entity: Afghanistan, Bangladesh, Bhutan, India, the Maldives, Myanmar, Nepal, Pakistan and Sri Lanka. This book is the product of two workshops on South Asian constitutionalism. The first was held in November 2006 at the School of Oriental and African Studies (SOAS) in London and the second at the Faculty of Law, National University of Singapore (NUS), in June 2009.

In the introduction, the editors, scholars of repute, offer a justification for this academic exercise: the different peoples of South Asia reflect the diversity of their surroundings, but despite the array of cultures, thousands of years of shared history has tied South Asia’s traditions and people together in complex ways. The search for a common foundation beneath the cultures of South Asia has attracted waves of scholarship, occurring in several distinct phases; but there is a void in the contemporary literature, which the book aims to fill.

The editors offer another justification: South Asia’s economic integration is vital to the region’s own prosperity and peace, and it has global implications. But such an integration will be a slow process, and it will require increasing dialogue and interconnection between the legal and governance structures present in the region, they point out.

Despite their divergent recent histories and political experiences, South Asian countries display a remarkable degree of constitutional and legal kinship. There are several common elements in the region’s constitutions, political structures and legal systems. These elements are drawn from the region’s colonial past and from its many diverse indigenous legal traditions. Therefore, the potential for intra-regional borrowing and comparative study is considerable, the editors suggest.

The trajectory of the studies on comparative constitutionalism in South Asia, as outlined in the introduction, is fascinating. Among the early scholars of South Asian constitutionalism identified in the book is Ivor Jennings, whose Waynflete Lectures, published as The Commonwealth in Asia (1951), compared the fledgling constitutional structures in India and the then Ceylon. In Ceylon, Jennings found the dangers of communalism as the chief obstacle to establishing a constitutional government. The greatest threat to fledgling Indian constitutionalism, he felt, was the vast emergency powers given to the Central government to suspend fundamental liberties just when they were most needed.

According to the editors, in the 1960s, Asia’s ruling elites were committed, more or less, to upholding constitutionalism. The five decades since have, in varying ways and degrees, both vindicated and disproved this assessment.

In 1965, Dieter Conrad, the German scholar, lectured at Banaras Hindu University’s Law Faculty on the topic of constitutional amendments. He forcefully argued that there ought to be implied limitations on the Indian Parliament’s power to amend the Constitution, bearing Germany’s experience with the Weimar Constitution in mind. In addition to Conrad’s writings, the doctrine of basic structure was apparently influenced by a Dhaka High Court judgment. The doctrine had a significant influence on constitutional developments in other South Asian jurisdictions.

Among the contemporary scholars who have contributed to constitutionalism in South Asia are Upendra Baxi and Neelan Tiruchelvan; the latter was a Sri Lankan lawyer, parliamentarian, and peace activist, with a keen interest in finding a peaceful solution to Sri Lanka’s civil war through constitutionalism. Tiruchelvan was assassinated by a Liberation Tigers of Tamil Eelam (LTTE) suicide bomber in July 1999. The editors find that he advanced regional constitutionalism as a means to ensure greater political and economic integration and harmony in Sri Lanka and in South Asia generally. He served as a consultant or adviser to constitution-making processes in Nepal, Kazakhstan, and South Africa. In that role, he rejected the form of constitution-making that legitimised the authority of political elites in favour of a consensual form of constitution-making that sought to empower all citizens.

In their tribute, the editors say that his commitment to South Asian constitutionalism is displayed in his final act before his untimely death—a draft constitution for Sri Lanka that ambitiously sought to heal its ethnic divisions and civil war scars by a process of devolution.

Colonial residue

In his essay, Upendra Baxi is uncomfortable with the very idea of South Asian constitutionalism (SAC). To him, the term, “South Asia” is a colonial invention and entrenches the violent geographies of injustice, as do the associated terms “South East Asia”, “Indochina”, the “Middle East”, and “Africa”. He suggests that these terms mask different penetrations of the global capital, the colonial as well as the contemporary. Ironically, his quest for a new postcolonial nomenclature to refer to South Asia remains unfulfilled in the book.

Baxi offers cogent reasons for his view, which appears to differ from that of the editors. First, the intensity of colonial subjugation across and within the incipient postcolonial state-formation varied greatly. Second, so did the specific histories of movements for independence that framed and forged the era of constitutionalism-to-come.

Third, the relation of the indigenous business and industrial classes with the new middle class, fostered partly by the civil service and new professionals and the nationalist leaders and movements, varies a good deal within “South Asia”. Fourth, the balance of class forces as well as of the civilian and military relationships influences/conditions the responsive capacity of the constitution-making elites to reshape inherited institutions. Understandably, he says, the processes of decision-making vary enormously across South Asia and this further complicates the understanding of the revolution of rising public and popular expectations, especially of the prehistory of SAC.

Fifth, questions concerning basic human rights of religious, cultural and linguistic minorities haunt forms of South Asian constitution-making and development. Sixth, mass impoverishment fostered by colonial rule or despotism and corresponding concerns about distributive justice dominate the varied landscapes of SAC. Last, he says, the geopolitics of the constitutional orderings “bloody” these in many poignantly unjust modes.

Baxi’s flight of imagination leads him to invent a new term in place of “cornerstone”, what the eminent historian Granville Austin used to describe the Indian Constitution in 1966 (the title of his path-breaking book is The Indian Constitution: Cornerstone of a Nation). In his essay, Baxi explains the ways in which SAC “cornerstones” have indeed become SAC tombstones.

Using the imagery of the idea of constitutions as sheer governance machines placed at the service of dominance, Baxi avers that most South Asian constitutions continue the obnoxious colonial inheritance—such as the powers providing for preventive detention and proclamations of emergency and martial law, and even the powers to “suspend” the original constitutions. This retention, he suggests, is made possible by the constitutional device of continuation of old colonial laws. Thus, Pakistan continues with the perpetuation of the 1901 Frontier Crimes Regulation (FCR), which authorises carte blanche arrests of tribal people without naming any crime and provides sanctions for collective crimes. He also cites the Indian constitutional penchant for retaining draconian colonial laws such as the Official Secrets Act or the offence of sedition.

Basic issues

Sujit Choudhry, in his essay, asks fundamental questions about the meaning, purpose and value of comparative constitutional law. In the Naz Foundation case, the application of Section 377 of the Indian Penal Code (IPC) to consensual sexual acts of adults in private was found to be unconstitutional and impinging on constitutional guarantees to life, liberty and equality. In reaching the decision, the court relied on comparative materials and considered whether the holdings and reasoning of foreign courts were analogically applicable in the Indian context. These materials served, according to Choudhry, as an interpretative tool with which to draw an analogy between the rights of sexual minorities and the uniquely Indian judicial experience with untouchability.

This is described as the dialogical model; that is, the role of argument by analogy. In the Naz Foundation case, the Delhi High Court pursued the idea that a constitutional system may single out social groups which have experienced severe disadvantage for the highest degree of constitutional protection and extend comparable constitutional response to other social groups experiencing analogous forms and levels of disadvantage.

Mara Malagodi and Richard W. Whitecross examine the efforts of Nepal and Bhutan to balance foreign and national experiences when constructing their respective constitutions. The two accounts assess the success of the attempts to assimilate values borrowed from elsewhere.

In Nepal, the 1990 constitution introduced parliamentary democracy and extensive fundamental rights; yet, its values were often not respected and its provisions manipulated. The promulgation of the 2007 interim constitution endeavoured to ignite a process of state restructuring and the creation of a new Nepali identity, but, according to Mara Malagodi, its success depends on certain prerequisites, such as consensus and stability.

The first written constitution of Bhutan was formally enacted by the fifth King, Jigme Khesar Namgyal Wangchuck, on July 18, 2008. As Whitecross explains, the majority of Bhutanese did not seek political reform or demand a constitution. The disestablishment of Buddhism as the official state religion, according to the author, makes a radical shift. The Bhutanese constitution drafters chose to explicitly avoid religion being politicised and thereby used to divide society. The author agrees that Indian constitutional law may be a looming presence in Bhutan.

Deepika Udagama considers the case of Sri Lanka, a state where a consistent jurisprudence on the constitutional protection of religious pluralism is yet to emerge. The Sri Lankan Supreme Court has engaged in a form of comparative constitutionalism that amounts to borrowing selectively and cynically—and without elaboration—law from abroad.

Deepika Udagama suggests that India’s commitment to secularism as an element of its basic structure doctrine does not seem to fit in well not only with the Sri Lankan constitutional scheme but also with the judicial approaches to the state-religion nexus. She believes that a rigorous and transparent approach to comparative constitutionalism has the promise to correct this damage. Comparative constitutionalism is a judicial tool or opportunity to access and import international human rights norms. These norms will buttress the rights and protections of Sri Lanka’s minorities, she says.

In their essay, Gary Jeffrey Jacobsohn and Shylashri Shankar argue that while the proximity of South Asian nation states suggests greater incentives for cross-national constitutional appropriation, those closer to the scene and possessing a more refined sense of relevant political and cultural differences may, in contrast, find themselves impressed by the obstacles to successful legal transplantation. The constitutional appropriation referred to here is the application of Indian secularism jurisprudence to Sri Lankan constitutional controversies. Here, they make the point that the character of constitutional borrowing by Sri Lankan justices in matters pertaining to secularism was marked by sheer opportunism.

The justices were inclined to uphold an absolute right to freedom of religion as long as this did not have a negative impact on Buddhism. When the primacy of Buddhism was at stake, they borrowed selectively from Indian case law to support a result beneficial to the constitutionally favoured religion. A defence of the state’s Buddhist identity lies in sharp contrast to the protection of minorities that drove the basic structure doctrine in India.

In his essay, Matthew J. Nelson, comparing the politics of personal law reform in Pakistan and India, asks why religious laws are more difficult to reform democratically. India under Prime Ministers Jawaharlal Nehru and Rajiv Gandhi and Pakistan under Generals Ayub Khan and Zia-ul-Haq pursued substantive reforms; Prime Ministers Benazir Bhutto and P.V. Narasimha Rao—both of whom led fragile coalition governments—did not. These facts make the author wonder whether the Hindu Succession (Amendment) Act, 2005, is an anomaly or an arbiter of future trends.

In his perceptive essay on religious freedom in India and Pakistan, John H. Mansfield argues that religious minorities in Pakistan are substantially worse off than religious minorities in India both with regard to their freedom to practise their religion and with regard to their freedom to convert others to their faiths.

Different notions

T. John O’Dowd examines the freedom of speech and expression as understood in the subcontinent as against in the United States. He considers the arguments for imposing censorship in a combustible, postcolonial society and the libertarian argument that harm is an essential precondition to the restriction of the right to expression. His conclusion is that in India, violent protests and the compliance of governments with their demands are more insidious threats to the freedom of expression than systematic and ideologically motivated censorship directed from the Centre.

According to him, far-reaching curbs on the freedom of expression and assembly under Section 144 of the Code of Criminal Procedure (CrPC), which are quite frequent in certain regions, are less often the subject of judicial review. Widespread use of Section 144, he suggests, reflects the executive magistracy’s continuing role in maintaining public order at the district level and below.

Ridwanul Hoque describes the role of the judiciary in Bangladesh in promoting and enforcing principles of constitutionalism. Against a political background characterised by occasional instability, the courts of Bangladesh have worked to restore faith in the constitution. Hoque argues that more recently the Bangladesh judiciary has been adopting a robust conception of constitutionalism to undergird its actions.

In his essay, Arun K. Thiruvengadam revisits an early comparative constitutional scholarly study on Asia and Africa to understand the role of judiciaries in public interest law movements, with special reference to India. Titled “The Role of the Judiciary in Plural Societies” (ROJ), this was published in 1987 and comprises a selection of academic papers, co-edited by Tiruchelvam and another Sri Lankan scholar, Radhika Coomaraswamy. The book had recommended that judicial activism, encouraged by social action litigation (or public interest litigation) inspired by constitutional values, may be regarded as a vital human technology for social change in impoverished societies. The Indian experience of PIL was the primary driving force behind this recommendation.

Thiruvengadam suggests that progressives in South Asian jurisdictions today seem far less convinced than they were at the time of ROJ’s release that judicial activism is an unqualified human good. He argues that judiciary should focus on being an ally of strong civil society groups and movements in their attempt to make the process of Indian democracy more participatory, inclusive and effective in pursuing the developmental goals enshrined in the Constitution. According to him, the Indian experience has relevance to other South Asian countries as well.

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