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Mainstream, VOL LV No 30 New Delhi July 15, 2017

Bold Appraisal of Crisis of Constitutionalism

Sunday 16 July 2017


by Vijay Kumar

The Constitution Of India: Miracle, Surrender, Hope by Rajeev Dhavan; Lexis Nexis in collaboration with Universal Law Publishing; pages: 173; Price: Rs 325.

Rajeev Dhavan’s recent book, The Constitution of India : Miracle, Surrender, Hope, is a thought-provoking work on the crisis of constitu-tionalism. The topicality of the book is enhanced as it has come at a time when intolerance and vigilante justice have risen menancingly. The book is dedicated to Fali S. Nariman, one of the most respected jurists of the country dubbed as a liberal lion, who has a become legend in his own lifetime. Nariman’s consistent and principled espousal of constitutionalism and secularism is well known, and it is fitting that the book is dedicated to him. He resigned from the post of Additional Solicitor General in protest against the imposition of what he termed as “phoney Emergency” by Mrs Indira Gandhi in June 1975, and returned the brief of the Gujarat Government in the construction of the Narmada Dam case, when minorities were attacked in Gujarat. The presence of Fali Nariman keeps on reminding us the importance of the almost obliterated distinction between great and successful lawyers.

The opening chapter of the book culminates in Dhavan’s assertion that the framing of the Constitution was a miracle, and today if distin-guished people are called upon to frame the new Constitution, they will miserably fail to produce one. This stand is unexceptionable. The Consti-tution was framed in one of the most trying and challenging times. The Indian independence was accompanied by a bloody partition in a highly surcharged atmosphere that engendered a climate which culminated in the assassination of the ‘Father of the Nation’ by a fanatic Hindu. Thus, circumstances were hardly propitious for framing the Constitution. But the Founding Fathers succeeded in transcending the cons-traints of the circumstances and framed a Constitution which enabled democracy to take firm roots in the country. So, the framing of the Constitution was indeed an act of miracle.

Constitutionalism seeks to stabilise the popular passion by ensuring that the ever present danger of democracy degenerating into mobocracy, and the actuality of the otherwise oxymoron phenomena of ‘majoritarian tyranny’ or ‘tyrannical majority’ becoming a reality is interrogated. Here, the enunciation of the basic structure doctrine is a seminal and historic contribution of the Supreme Court, and it is on the touchstone of this doctrine that the Supreme Court invalidated the notorious 39th and 42nd Amendments and saved democracy. Confronted with abuse of power, Dhavan grudgingly accepts the fetter of Parliament on sovereign power, through the tenet of the basic structure in existential terms, but surprisingly is opposed to it theoretically.

Constitutionalism evolves in the light of political praxis. The dialectics of constitutionalism lies in the fact that it shapes political behaviours and action and, in turn, is shaped by them. The enunciation of the doctrine of the ‘basic structure’ was a great seminal contribution to entrench the Constitution and culture of constitu-tionalism. The formulation of the basic structure further marked the transformation of the Consti-tution from ‘descriptive’ into ‘prescriptive’, in a sense articulated by the German jurist and judge, Dieter Grimm. The distinction between the ‘Constitution’ and the ‘Constitutional Law’, formulated by Carl Schmitt, was concretised by the formulation of the theory of the basic structure. The evolution of the basic structure was accom-plished through the highest level of judicial creativity and craftsmanship characterised as “courage, craft and contention” by Prof Upendra Baxi.

The theory of constitutionalism is anchored on the twin pillars of democracy and the rule of law. Democracy represents the rule by majority and the political will is rooted in the concept of majoritarianism, whereas the rule of law is grounded in reason. This is defined as ‘will’ and ‘reason’ by Paul Kahn. The funda-mental problem of constitutionalism, “according to Kahn”, is to negotiate the relationship between ‘reason’ and ‘will’. This author, while delineating the evolution of constitutionalism in India in the last 60 years, argued in his book, in 2012, that ‘public reasoning’, or the articulation of it, alone can sustain the constitutional supremacy and, as Prof Upendra Baxi puts it, the “adjudicatory leadership of the Supreme Court”.

Dhavan has delineated the fault-lines in constitutional developments, and the foremost among them, in his view, is federal asymmetry, exacerbated by the unilateral power of Parlia-ment to alter the boundary of the States without their consent, and the power of the Union Government to impose President’s Rule in the State. The second shortcoming in the working of the Constitution is the completely skewed nature of the representative system of govern-ment and it is this which has resulted in abasement of parliamentary democracy and, it is in this sense, that Dhavan hypothesises that obedience to the Constitution has resulted in people surrendering themselves before their representatives. Yet another weakness is the failure to translate the objectives of the welfare state and egalitarian social structure embodied in the Directive Principles of the state into reality.

Dhavan is right in reposing his hope in people-centric activism sustained by NGOs representing people’s struggle groups. Barring the amorphous basic structures, the Consti-tution is open-ended and could be appropriated by all sorts of ideologies, characterised as ‘isms’ by Dhavan. The function of interpreting hermeneutics, however, contains some degree of autonomy, and here the choice and ideological proclivity of custodians and constitutional adjudicators assume significance. The hope in constitutionalism can be sustained through a counter-hegemonic discourse informed by intellectual integrity and backed by people-centric activism.

Forthrightness and boldness pervade the book under review. Dhavan has rightly maintained that some of our best and worst judges are infected by the toxic ideology of Hindutva. The ‘Hindutva’ judgment of 1995 was authored by the otherwise most dynamic Judge of the Supreme Court, Justice J.S. Verma, who, as the Chairman of National Human Rights Commission, interro-gated resolutely the organised pogrom in Gujarat in February 2002. The recent statement of the Judge of the Rajasthan High Court, Mahesh Chandra Sharma, that cow should be made a national animal, and the earlier occasion of one lady Judge of the Delhi High Court starting the judgment with recitation of a popular patriotic song from a Hindi film in course of granting bail to Kanhaiya, the then President of the JNU Students Union, are instances that lend credence to Dhavan’s conclusion. He is also right in his assertion that neoliberal forces have penetrated into all the constitutional institutions, in both the United States and India. In fact, neoliberalism and Hindutva feed upon each other, as both seek to deradicalise the political discourse.

One notable omission in the book under review is the complete absence of any discussion on the significance of ‘public reasoning’, in a sense conceptulised by late John Rawls and entrenched in recent times by Prof Amartya Sen. Dhavan rightly characterises the interpre-tation of the Constitution by its custodian in a manner akin to the fixing of the meaning by Humpty Dumpty in Carol’s ‘Alice in Wonder-land’. Here, the discussion on ‘public reasoning’ could have been apposite, as the concept would have helped us to critique the interpretation of the fundamental document in a humpty dumpty manner and hold the custodians to account. the humpty dumpty style of interpretation is the result of the will to power whereas the emanci-patory discourse could be generated only through articulation of public reasoning. Here the distinction between will and reason, made by Paul Kahn, assumes significance.

Another flip side of the book is the issue pertaining to personal liberty, guaranteed under Article 21 of the Constitution, that has not received the attention it deserved, perhaps because Dhavan does not appear in criminal matters. Once Dhavan comes to the conclusion that, by and large, the courts are more hospitable to the haves, the logical corollary is that it is the have-nots who bear the brunt of restrictive and at times even reactionary, interpretation of personal liberty. The Supreme Court, through interpretive hermeneutics, carved out a host of derivative rights under Article 21, but its core element pertaining to personal liberty has not been guarded by it and the disastrous judgment in ‘Habeas Corpus’ during the Emergency was different only in terms of degree rather than in kind. This is despite the liberating judgment in the Maneka Gandhi case that the ‘procedure established by law means just, fair and reasonable procedure’. The presence of the provision of preventive detention and enactment of a plethora of draconian penal provisions in the last thirty years, and their consistently conservative interpretations by the Supreme Court make it anti-libertarian. The phenomena of reading so many rights in the text of Article 21, and not invoking the due process with the fullest of rigour in a case pertaining to personal liberty, reached outlandish proportions when the ‘right to reputation’, one of the penumbral rights in the text of the right to life, was allowed to trump one of the most basic political rights, “freedom of speech and expression”, by refusing to strike down the pre-constitutional colonial penal provision dealing with criminal defamation. But then, the book can be critiqued for what it says, and not for what it refrains from articulating.

The book under review has come at a time when narrow, sectarian and muscular nationa-lism and majoritarianism have risen alarmingly and are posing a grave threat to constitutionalism and democracy. Edward Said wrote that the first and foremost commitment of the intellectual is to speak truth to the power. Constitutionalism can evolve only when constitutionalists interrogate the custodian and humpty dumpty manner of interpretation, and Dhavan has lived up admirably to this challenge.

The reviewer, a Supreme Court advocate and author of The Supreme Court of India: Policy Formulator or Active Protector?, can be contacted at e-mails krvijay02[at]rediffmail.com and vijayadv62[at]gmail.com

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