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Mainstream, VOL LVI No 13 New Delhi March 17, 2018

Unfolding a South Asian Perspective on Constitutionalism

Sunday 18 March 2018


by Deepak Kumar

Comparative Constitutionalism in South Asia edited by Khilnani S., Raghavan V. and Thiruvengadam A.K.; Oxford University Press, New Delhi; 2016; (2nd edition); pages: 401; Price: Rs 595.00.

South Asia is a region which emerged out of a colonial past and which holds multitude of diversities, legal traditions, constitutional heterogeneities and political structures. It has had a diverse history of constitutionalism with varied meanings and interpretations. In such a muddy terrain this edited book, Comparative Constitutionalism in South Asia, offers a significant South Asian perspective on constitutionalism.

This book contains articles with national and cross-national accounts of religion, pluralism, constitutional constraints and plural societies. The South Asian region, with a multitude of diversities, provides enormous interest across the world. The book has been the product of an attempt by several prominent scholars through a decade with at least two workshop sessions, which itself reflects the amount of time it took to address this neglected subject. The book essentially holds accounts of South Asian countries which include India, Pakistan, Bangladesh, Nepal, Bhutan and Sri Lanka, though there are frequent references to a few other countries. This book contains chapters related to seven national and three cross-national examples of constitutionalism.

The first chapter by Upendra Baxi is ques-tioning the idea of the Constitution as the mechanism of governance and efficiency. He finds the importance of the Constitution as the ‘symbolisation of the principle of equality that is simply unparalleled in most post-colonial constitutional forms’. As he observes, “even the sophisticated constitutional minds in South Asian constitutionalism (SAC) remain blissfully unaware of the new discourse...” According to him, SAC was marked with colonial continuities, turning cornerstones into tombstones. With the inheritance of colonial laws in most South Asien states the effects of such retention seem to be apparently quite visible in the present furore of nationalist jingoism on nationalism in India which grants usage of sedition laws against its own citizens. Besides, there are several discontinuities from the postcolonial constitutional forms. Further, he points to the hegemonic Global North’s ‘constitutional economies’ which, predominated by ‘efficiency’ and ‘optimality’, need to be studied in SAC’s Global South (India, Pakistan, Sri Lanka and Bangladesh) so as to acquire a better understanding in this globalised scenario. However, Baxi analyses and questions the ‘rational choice theory’ and brings in his own concept of ‘optimal constitutional design’ as more applicable to understand constitutionalism in South Asia in the era of globalisation.

The second chapter, authored by Sujit Choudhry, unravels the debate sparked by the NAZ Foundation v. Union of India judgment in 2009. He points out how the court uses comparative constitutional methodology to deliver its judg-ments. With dialogical interpretation this chapter offers merits and demerits of adopting comparative jurisprudence in the same sex rights. For example, ‘in the growing number of constitutional systems, courts have condemned discrimination on the basis of sexual orientation, and interpreted constitutional guarantees of liberty and/or privacy in a non-discriminatory manner to encompass sexual intimacy between same sex partners’. Therefore, this chapter is an intervention to highlight two issues: one, to what extent comparative judgment can be permitted; and two, how do we situate India in the field of comparative constitutional law?

The third, fourth and fifth chapters, written by Mara Malagodi, Richard W. Whitecross and Deepika Udagma, essentially try to understand religion, secularism, pluralism and constitu-tionalism in Nepal, Bhutan and Sri Lanka respectively. Malagodi’s chapter points to the political turmoil in acquiring a stable Consti-tution till 2007, though the author misses the recent developments and controversies in Nepal’s new Constitution that came into effect on September 20, 2015. But, she mentions that greater political responsibility along with consensus and stability would be essential constituents to achieve lasting peace in Nepal. These chapters cover another landlocked state ‘Bhutan’, where Whitecross traces the implication and impact of secularism in the Bhutanese Constitution. Unlike its neighbouring states, it doesn’t draw from any case law; instead it unravels the impact of the first written Constitution. He mentions that instead of creating division within its heterogeneous population, the Bhutanese state sought to project a “shared national identity which is respectful of minority cultural and linguistic traditions”. (Ibid. 136) Further, he mentions that “separation of religion from politics was a step towards creating a new civil space for political debate and dissent”. The fifth chapter by Udagama delves into the post-constitutional experience of Sri Lanka and its chequered history of pluralism in a multi-ethnic and multi-religious society. It essentially explores the undermining of equality and plurality under the politics of religion and state power. She specially underlines that the Sri Lankan constitutional jurisprudence has been quite limited and most challenging to achieve religious pluralism in a fragmented polity.

The ninth chapter by T. John O’Dowd deals with that limits of freedom of expression and debate surrounding liberal traditions (of John Stuart Mill and James Fitzjames Stephen) by analysing the debates surrounding contem-porary South Asia and specially in India in particular. The tenth chapter by Rizwanul Haque offers an account of the judiciary of Bangladesh in the post-independence era. He highlights its achievements, failures and the limited role it played along with the impact of Indian public interest jurisprudence and global human rights jurisprudence on itself. The final chapter by Arun K. Thiruvengadam focuses on the rise of judicial activism while analysing the importance of social change in India in particular and in South Asia in general. Here Thiruven-gadam argues that the role of the judiciary is “deeply problematic” which he expands by bringing both the descriptive and normative arguments while tracing the history of the PIL in India. According to him, the Indian judiciary should seek to make the civil society its ally in order to help Indian democracy to become more participatory, inclusive and effective.

Apart from these detailed national accounts, there are a few cross-national accounts by Gary J. Jacabson and Shylashri Shankar, Matthew J. Nelson and John H. Mansfield. The sixth chapter by Jacabson and Shankar evaluates the cross-national constitutional appropriation from India to Sri Lanka. Rather than describing it as constitutional borrowing, they call it mix of motives, that is, opportunistic, self-reflective and unreflective. Both the seventh and eighth chapters offer narratives of partitioned countries—India and Pakistan. The former chapter by Nelson focuses on the area of religious-cum-legal reform on ‘inheritance’ and constitu-tional constraints, whereas the latter one by Mansfield basically deals with religious freedom and religious conversion in both countries. Both these chapters provide exhaustive accounts to enable a comparative understanding of the religious and constitutional precepts.

Thus, this book presents significant material to understand the South Asian context through the pioneering works by its contributors. Although it has analysed an array of problems surrounded by religious pluralism, ethnic issues, constitu-tional constraints etc., it does not cover matters related to security and global terrorism. Therefore, it was pointed out in the introduction that it “can only scratch the surface of this terrain”. Indeed this book is an essential work which would encourage future studies on South Asian constitutionalism.

The reviewer is an M.Phil candidate, Department of Political Science, University of Delhi.

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