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Mainstream, VOL LI No 22, May 18, 2013

Poineering Work on Comparative Constitutionalism in South Asia

Saturday 18 May 2013, by Vijay Kumar



Comparative Constitutionalism in South Asia: ed by Sunil Khilnani, Vikram Raghavan and Arun K. Thiruvengadam; Oxford Univrsity Press, New Delhi; 2013; Pages 401.

The book under review is long overdue. The comparison of evolution of constitutionalism in the South Asian countries has not been done in a systematic and structural manner till date. The book in your hand seeks to fill the void. The book is rightly dedicated to the two of the tallest jurists of the region: Neelan Tiruchelvam of Sri Lanka and Prof Upendra Baxi of India. Both Neelan Tiruchelvam and Upendra Baxi deserve this honour for their pioneering work in the fields of human rights and constitutionalism.

One of the ways of judging the book is its capacity to stimulate one’s thinking process. The book under scrutiny will inspire vibrant debate on comparative constitutionalism in South Asia. One may agree or differ with the contributors, but their arguments cannot be ignored. From this perspective the book under review provides a template for further compa-rative works on the evolution of constitutionalism in South Asian countries by legal scholars, nay, historians and political scientists.

Constitutionalism has not been defined by any of the contributors. The present reviewer had occasion to address the evolution of constitutionalism in India and the creative dialogue among the apex adjudicators of South Asian countries in his recent work (The Supreme Court of India: Policy Formulator or Active Protector?). I had occasion to trace out the evolution of constitutionalism after the rise of fascism through democratic means in Germany and define constitutionalism as a way to legitimati-sing the political decision by making it principled and interrogating the majoritorian impulse. In course of critiquing Justice Katju’s overboard fulminations on relying on foreign judgments and UN instruments, the present reviewer concluded that “the task of adjudication in apex constitutional court is not merely confined to adjudication of the cases that come before it but also to laying down the constitutional norms in creative and statesman-like manner and thereby producing ‘public reasoning’ through emanci-patory ‘judicial discourse’ in John Rawls’ conception of it as later entrenched by Prof Amratya Sen”. Relying on Amratya Sen’s thesis in Idea of Justice, I passionately argued for a creative dialogue among the apex adjudicators of the South Asian countries. A couple of examples will underscore the significance of this dialogical encounter.

The Supreme Court of India, in its most historic and significant judgment in Kesava-nanda Bharati, relied on the judgment of the Privy Council in the Bribery Commissioner’s case that came before it from the decision rendered by the Supreme Court of Sri Lanka. Again, when the Janata Party Government, led by Morarji Desai, dismissed all the Congress-led State governments on a bizarre understanding of the Constitution that the change of the government at the Centre amounted to losing confidence of the people even in the State Assembly, it was challenged before the Supreme Court and the majority judgment of the Supreme Court rejected the challenge but two judges, namely, Justice P.N.Bhagwati and Justice Untwalia, gave dissenting judgments. The dissenting judgment by Justice Bhagwati relied upon the Lahore High Court quashing the imposition of President’s Rule in one of the provinces in Pakistan which in turn relied upon the Supreme Court of India in the Bommai case. The book in your hand is replete with numerous instances when the Sri Lanka, Bangladesh, Nepal and even Pakistan Supreme Courts relied upon the decisions rendered by the Supreme Court of India. Both the Bangladesh and Nepal Supreme Courts have adopted the ‘basic structure’ theory propounded by the Supreme Court of India in Kesavananda Bharati and thereby tried to entrench constitutionalism within their own jurisdictions. The Sri Lankan Supreme Court, on the other hand, rejected the ‘basic structure’ argument but relied upon the Indian Supreme Court’s judgment on deciding cases pertaining to ‘religious conversion’.

The opening chapter by Prof Upendra Baxi sets the ball rolling. Through brilliant analysis, Baxi interrogates the increasing tendency to think of the Constitution in terms of governance and efficiency and he rightly posits the antinomy between equity, right and justice on one hand and language, logic and paralogic of efficiency, growth and good governance on the other. Baxi terms this phenomenon as the ‘optimal constitu-tional design’ which seeks to trump equity, right and justice by the amoral process of develop-ment, particularly from the perspective of globalisation. Without naming, Baxi is dropping a hint to join issue with Prof Amratya Sen on ‘Rational and Social Choice’, expounded in Idea of Justice. Such an attempt to interrogate the ‘social choice’ theory in the days of globalisation is extremely welcome and timely and I hope that Prof Baxi will develop the full scale critique of ‘rational and social choice’ for achieving the ‘optimal constitutional design’.

The second chapter, contributed by Sujit Choudhary, brings home through rigorous analysis the significance of the dialogical mode of interpretive confrontation and clarification. The third and fourth chapters by Mara Malagodi and Richard W. Whitecross trace the constitu-tional developments in Nepal and Bhutan respectively. Deepika Udagama in chapter five attempts to evaluate the comparative constitu-tionalism in Sri Lanka in the arena of religious pluralism. Gary J. Jacobsohn and Shylashri Shankar in chapter six evaluate the development of secular constitutional identity in India and Sri Lanka. Similar comparative exercise in respect of personal law reforms and matters of conversion in India and Pakistan is done by Matthew J. Nelson and John H. Mansfield in chapter seven and eight respectively. T. John O’Doued in chapter nine delineates the different nuances of freedom of speech and reasonable restriction on the same. Ridwanul Haque in chapter ten provides an extremely useful evolution of constitutionalism in Bangladesh and the heavy reliance placed by its apex adjudicators on the judgments rendered by its Indian counterparts. Whether it is a theory of basic structure or unconstitutionality of man-datory death sentence or secularism, the Bangladesh Supreme Court is increasingly relying on the Indian Supreme Court and in the process enriching its own constitutional jurisprudence. The last chapter by Arun K. Thiruvengadam, who is also co-editor with Vikram Raghavan and Sunil Khilnani, essays the brilliant analysis of the shifting contours of public interest litigation in the Indian Supreme Court. Some of the issues pertaining to the direction in which PIL is heading and being allowed to be hijacked by neo-liberal forces have already been brought out by this reviewer in his recent book referred to earlier. Thiruven-gadam poignantly brings to the fore the completely transformed nature of PIL litigation in the decade of the nineties and the first decade of the new millennium. The changing priority on the part of apex adjudicators in PIL litigation could best be summed up by Nivedita Menon’s analysis that ‘environment trumps people and development trumps environment’, as quoted by Thiruvengadam.

The flip side of the book is that all the contri-butors are legal scholars. This is surprising. The significance of the inter-disciplinary approach cannot be overemphasised. The absence of any contribution from political scientists and historians from any of the South Asian countries, including by its star editor, Sunil Khilnani, is quite puzzling. Today, no discipline, particularly in the realm of social science, could be pursued in isolation. Justice is the goal of law but justice is as much a legal and juridical concept as a philosophical, social, economic, cultural and ethical concept. An interface, therefore, of all disciplines is critical for evaluating the evolution of constitutionalism and its comparative study for the simple reason that any discourse on constitutionalism cannot be essayed in a hermetical way.

The absence of any contribution by historians and political scientists notwithstanding, the book under discussion is highly useful and a timely response to an issue which has acquired great topicality. In societies as diverse and polities as disparate as the South Asian countries, the rule of law and constitutionalism could be great unifying forces capable of deepening democracy.

The reviewer is an Advocate, Supreme Court, and author of the recently released book, The Supreme Court of India:Policy Formulator or Active Protector?

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