The Transformative Constitution

by Gautam Bhatia

  It, therefore, becomes crucial to subject automated decision-making to the culture of justification. One way, as we discussed above, is through a right to a fair hearing, before a person is deprived of any entitlements by an automated decision-making process. Other mooted solutions include the EU General Data Protection Regulation’s (GDPR) similar right to an explanation, as well as possible judicial remedies requiring disclosure of ‘the source code for decision-making systems’.46 Source-code disclosure is meant to indicate the precise manner in which the decision has been arrived at, and allow for the identification of possible biases that are baked into the system.47

  Whether this will achieve the goal is, however, controversial, as source codes are ‘illegible to non-experts and unpredictable to experts as well’.48 In this context, however, recall our discussion of sex discrimination under Article 15(1) of the Constitution. Transformative constitutionalism seeks to address structural and institutional biases by going beyond interrogating the reasons for State action, and looking to their effects. Source-code disclosure, in turn, tells us only about the method of decision. In a somewhat inexact sense, it is the algorithmic equivalent of ‘reasons for State action’. Transformative constitutionalism, therefore, may require the application of something like a disparate impact/disproportionate effects approach to algorithmic decision-making, in order to substantially address issues of bias and discrimination sufficiently.49

  The precise manner in which the culture of justification is to be legally encoded into the operation of technological systems, of course, is something that the courts must develop as the cases come before them. But what we can clearly see is this: much like the three pillars of transformative constitutionalism, viz., liberty, equality, and fraternity, take their shape and form from each other, the interface between technology, the information society, and the Constitution must be examined as a whole. Control over data impacts freedom, perpetuates institutional disadvantage, and also helps to consolidate private regimes of power. Automated processing excludes individuals from accessing their rights, disproportionately excludes the most vulnerable, and gives private parties unaccountable control over determining issues of access and exclusion. And so on.

  For those who find the drawbridge pulled up against them, the constitutional promise has failed. There are far too many of those. It is now our task to dismantle the drawbridge, fill up the moat, and replace the castle walls with gateways. The proliferation of mirror databases and the CCTNS (Crime and Criminal Tracking Network and Systems) suggests that it may be almost too late to undertake this task, but the future of transformative constitutionalism depends upon it. The Constitution must, as Justice Chandrachud noted urgently in his dissenting judgement in Aadhaar, ‘address the dialogue between technology and power’.50

  Indeed, the future of republican democracy depends upon it.

  II. Conclusion: Technological Self-Determination and the Transformative Constitution

  At the time of Independence, India was a society characterized by authoritarian political power, legal and social inequalities, and unaccountable private regimes of domination. The Constitution acknowledged both this legacy and this reality, and sought to transform it. In this book, I have attempted to articulate that transformative constitutional vision through nine judgements.

  But today, transformative constitutionalism is at risk in a world where the relationship between individuals, communities, corporations, and the State is mediated, and sometimes even defined, by technological systems. Like most other things, this is not a problem that can be solved in a courtroom; but it does require a constitutional and judicial response.

  In early 2018, the Supreme Court took a first step towards articulating such a response. Common Cause v. Union of India concerned the legality of passive euthanasia. A Constitution Bench of the Supreme Court located the right to assisted dying within the contours of the fundamental right to life and personal liberty.51 But there was something more that emerged from a close reading of the concurring opinions: a concern that the decision about whether to receive or to decline medical intervention or medical treatment is a choice for the individual to make. This concern was crystallized in a single sentence from the opinion of the Chief Justice: ‘should [the individual] be [a] “guinea pig” for some kind of experiment?’52

  What does this mean? It means that there exists a right to refusal. An individual has a choice to refuse being conscripted into a technological system, whatever its beneficial purpose might be. In Common Cause, the context was medical intervention, but the principle is broader. Medical intervention is only one example of a world in which technological systems are embedded in the fabric of our daily lives.

  What is this broader principle? I call it the right to technological self-determination, and I define it as follows:

  Individuals have the right to engage with technological systems on their own terms, the right to opt into or opt out of such systems without suffering for it, and the right not to be subjected to technological intervention without being given meaningful choice. Technological self-determination is the right of every individual to determine how, on what terms, and to what extent, she will engage with technological systems.53

  This is, of course, an abstract principle. But I would argue that technological self-determination must form the basis of how we understand the relationship between technological systems and the constitutional trinity of liberty, equality, and fraternity. Technological self-determination must be at the heart of the transformative constitutional order of the twenty-first century.

  In his dissenting judgement in the Aadhaar case, Justice Chandrachud grasped the beginnings of this principle, when he observed:

  Identity includes the right to determine the forms through which identity is expressed and the right not to be identified. [With Aadhaar] … that concept is now ‘flipped’ so that identification through identifiers becomes the only form of identity in the time of database governance. This involves a radical transformation in the position of the individual.

  And he, therefore, held that the right to a choice in establishing one’s identity—including by refusing to submit to a biometric-based identification system—was now a constitutionally protected right.

  There is little doubt that the Aadhaar case represents a setback to a full-blooded articulation of technological self-determination as a guiding constitutional principle. But in the Common Cause judgement, and in Justice Chandrachud’s dissenting opinion in Aadhaar, we have the ideal in its incipient form, almost a chrysalis, awaiting metamorphosis. It has already become a part of the contrapuntal narrative, the contemporary story of the Supreme Court read against the grain, the alternative canon reassuring us that, in the waiting-room of history, to ‘set alight the sparks of hope in the past’54 is always a possible dream.

  Perhaps the history of transformative constitutionalism in India tells us that it has ever been thus.

  Notes

  Prologue: The Past Is a Foreign Country

  1. The term ‘jagirdar’ refers to a type of feudal landholder in India, dating back to medieval times.

  2. State of Gujarat v. Vora Fiddali Badruddin Mithibarwala (1964) 6 SCR 461.

  3. Id., ¶114 (concurring opinion of Justice Shah).

  4. Id. (concurring opinion of Justice Shah).

  5. Id., ¶136 (concurring opinion of Justice Shah).

  6. Id., ¶14 (dissenting opinion of Justice Ayyangar).

  7. Virendra Singh v. State of UP (1955) 1 SCR 415, ¶28.

  8. State of Gujarat v. Mithibarwala, supra, ¶136.

  9. Id., ¶134.

  10. Id.

  11. Id.

  12. Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1 (majority opinion of Justice Chandrachud); Kalpana Mehta v. Union of India 2018 SCCOnline SC 512 (concurring opinion of Justice Chandrachud); Government of NCT of Delhi v. Union of India, C.A. No. 2357/2017.

  13. For a nuanced assessment of the ‘colonial continuity’ line of thought, see
Arudra Burra, ‘The Cobwebs of Imperial Rule’, (2010) 615 Seminar: We the People, available at http://www.india-seminar.com/2010/615/615_arudra_burra.htm, visited on 25 May 2018.

  14. B.N. Rau, India’s Constitution in the Making 1 (Calcutta: Orient Longman 1960).

  15. See, e.g., Granville Austin, The Indian Constitution: Cornerstone of a Nation, Ch. 1(New Delhi: OUP 1996). Uday Mehta calls it, therefore, a ‘succession of personnel’. Uday S. Mehta, ‘Constitutionalism’ in The Oxford Companion to Politics in India 15, 19 (Jayal & Mehta eds., New Delhi: OUP 2010). As Klug points out, however, ultimately, the Constituent Assembly ‘emerged as a fully sovereign, unrestricted, constitution-making body’, not something that you could say for many of India’s counterparts in other parts of the world, where the transition was far more ‘managed’, and ‘the Westminster Parliament enacted each post-Independence Constitution’. Heinz Klug, Constituting Democracy: Law, Globalism, and South Africa’s Political Reconstruction 94 (Cambridge: Cambridge University Press 2000). See Javed Majeed, ‘A Nation on the Move’: The Indian Constitution, Life Writing and Cosmopolitanism’ (2016) 13(2) Life Writing 237, who makes the same point. See also Sarbani Sen, The Constitution of India: Popular Sovereignty and Democratic Transitions (New Delhi: OUP 2011). For a comparative discussion, see Hinds v. The Queen [1977] AC 195. For a contrary view, arguing that the work of the Assembly must be characterized in light of the political vicissitudes that led to its formation, see Arvind Elangovan, ‘“We the People?” Politics and the conundrum of framing a constitution on the eve of decolonisation’ in The Indian Constituent Assembly: Deliberations on Democracy 10–35 (Udit Bhatia ed., London: Routledge 2018). Interestingly, the membership of the Constituent Assembly was cited by some members as a reason for dissolving it, and redrafting the Constitution afresh by a different Assembly, elected on the basis of universal adult franchise. See e.g., Parliament of India, Constituent Assembly Debates, Vol. VII, 5 November 1948 (speech of Damodar Swarup Seth), available at http://164.100.47.194/Loksabha/Debates/cadebatefiles/C05111948.html.

  16. See generally, Subhash C. Kashyap, Our Constitution: An Introduction to India’s Constitution and Constitutional Law (2nd ed., New Delhi: National Book Trust 2011). B.N. Rau himself was a key figure in the drafting of both documents.

  17. M.P.V. Sundararamier v. State of AP, 1958 SCR 1422. This objection was made repeatedly in the Constituent Assembly as well.

  18. Ruti Teitel, ‘Transitional Jurisprudence: The Role of Law in Political Transformation’, (1997) 106 Yale Law Journal 2009, 2057. But see Arvind Elangovan, ‘Provincial Autonomy, Sir Benegal Narsing Rau, and an Improbable Imagination of Constitutionalism in India, 1935–38’, (2016) 36(1) Comparative Studies of South Asia, Africa and the Middle East 66, for a more complex relationship between the 1935 Act and the 1950 Constitution.

  19. Subhash Kashyap, Our Constitution, supra. The immediate trigger for this was the large-scale political violence that accompanied the birth-pangs of the new nation. For background context, see Austin, The Indian Constitution: Cornerstone of a Nation, Ch. 3, supra.

  20. Sandipto Dasgupta, ‘“A Language Which is Foreign to Us”: Continuities and Anxieties in the Making of the Indian Constitution’ (2014) 34(2) Comparative Studies of South Asia, Africa and the Middle East 228, 237. See, e.g., M.P. Sharma v. Satish Chandra, 1954 SCR 1077, using this history to hold against a fundamental right to privacy under the Constitution (but overruled on this point in Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 6 SCC 1).

  21. Uday S. Mehta, ‘Constitutionalism’, supra, 16; Rochana Bajpai, Debating Difference (New Delhi: OUP 2011); see also, Dasgupta, ‘A Language That is Foreign to Us’, supra, 231, discussing how the Constituent Assembly was often required to adopt the register of an administrator (rather than a sovereign).

  22. Madras Bar Association v. Union of India, (2014) 10 SCC 1.

  23. Uday S. Mehta, ‘Constitutionalism’, supra, 19 (emphasis mine); but see, contra, Dasgupta, ‘A Language That is Foreign to Us’, supra, 230, using the word ‘absolutist’ to describe the colonial regime.

  24. Government of India Act, 1935.

  25. In the words of Rohit De, a ‘whiggish narrative.’ See Rohit De, ‘Constitutional Antecedents’ in The Oxford Handbook of the Indian Constitution 17, 17 (Sujit Chaudhry et al eds., New Delhi: OUP 2016).

  26. As Dr B. Pattabhi Sitaramayya, the President of the Congress Party, observed during the third and final reading of the draft Constitution in the Constituent Assembly, ‘it was by an imperceptible transition from the stage of bureaucracy and dependence to the stage of a republic and cooperative commonwealth that we have wrought these transformations.’ Notice the seemingly contradictory juxtaposition of ‘imperceptible transition’ and ‘transformation’. Parliament of India, Constituent Assembly Debates, Vol. XI, 25 November 1949 (speech of Dr B. Pattabhi Sitaramayya), available at http://164.100.47.194/Loksabha/Debates/cadebatefiles/C25111949.html. This issue split the Constituent Assembly, and was the subject of bitter criticism in the Third Reading.

  27. Among the various scholarly works that make this argument, see, e.g., Shahid Amin, Event, Metaphor, Memory: Chauri Chaura 1922–1992 (Berkeley: University of California Press 1995); Gyanendra Pandey, ‘A Rural Base for Congress: The United Provinces 1920–1940’ in Congress and the Raj: Facets of the Indian Struggle 1917–1947 (D.A. Low ed., London: Arnold Heinemann, 1997).

  28. Partha Chatterjee, Nationalist Thought and the Colonial World: A Derivative Discourse (2nd ed., Minneapolis: University of Minnesota Press 1993).

  29. Mithi Mukherjee, India in the Shadows of Empire: A Legal and Political History (1774–1950) (New Delhi: OUP India 2009); Partha Chatterjee, Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton: Princeton University Press 2004).

  30. Nivedita Menon, ‘Citizenship and the Passive Revolution: Interpreting the First Amendment’ in Politics and Ethics of the Indian Constitution 189–211 (Rajeev Bhargava ed., New Delhi: OUP 2008). In the ‘third [i.e., final] reading’ of the Constitution in the Constituent Assembly, Mahboob Ali Baig labelled it ‘disappointing, conservative, and reactionary’. Parliament of India, Constituent Assembly Debates, Vol. XI, 21 November 1949 (speech of Mahboob Ali Baig Sahib), available at http://164.100.47.194/Loksabha/Debates/cadebatefiles/C21111949.html. Dr P.S. Deshmukh argued that the Constitution was about ‘maintaining the status quo’. Parliament of India, Constituent Assembly Debates, Vol. XI, 22 November 1949 (speech of Dr P.S. Deshmukh), available at http://164.100.47.194/Loksabha/Debates/cadebatefiles/C22111949.html.

  31. Arvind Elangovan, ‘The Making of the Indian Constitution: A Case for a Non-Nationalist Approach’, (2014) 12(1) History Compass 1.

  32. K.G. Kannabiran, The Wages of Impunity: Power, Justice and Human Rights 21–22 (New Delhi: Orient BlackSwan 2004). See also Rohit De, ‘Constitutional Antecedents’, supra, 31–32.

  33. See, for example, Nehru’s speech introducing the Objectives Resolution. The Framing of India’s Constitution: Select Documents 4–11 (B. Shiva Rao ed., Gurgaon: Universal Law Publishing 1967).

  34. Parliament of India, Constituent Assembly Debates, Vol. VII, 4 November 1948 (Speech of Dr B.R. Ambedkar), available at http://164.100.47.132/LssNew/cadebatefiles/C04111948.pdf, visited on 25 May 2018. See also Uday Mehta, ‘Indian Constitutionalism’ in The Oxford Handbook of the Indian Constitution, supra, 38, 48: (‘… the dominant temper of mind in the assembly was revolutionary’; and Hanna Lerner, ‘The Indian Founding’, ibid., 54, 58.

  35. For the limited and constrained nature of the 1935 Government of India Act, see Arvind Elangovan, ‘Provincial Autonomy, Sir Benegal Narsing Rau, and an Improbable Imagination of Constitutionalism in India, 1935–38’, (2016) 36(1) Comparative Studies of South Asia, Africa and the Middle East 66; see also Andrew Muldoon, Empire, Politics, and the Creation of the 1935 India Act: Last Act of the Raj (Farnham: Ashgate 2009).

  36. In the speech cited above, as Dr Sitaramayya pointed out, ‘We have ext
ended the franchise which gave us three and a half crores of voters at the time when the British left this country, to seventeen crores of voters who will adorn the electoral rolls immediately next year.’ Parliament of India, Constituent Assembly Debates, supra. A five-fold increase in the franchise is probably more of a transformative change than an ‘extension’ of the franchise. See also, Ornit Shani, How India Became Democratic (New Delhi: Penguin 2018).

  37. Uday S. Mehta, ‘Constitutionalism’, supra, 20.

  38. The term ‘transformative constitutionalism’ is borrowed from South African scholarship. While I place myself firmly in the tradition of constitutional scholarship that began with Karl Klare’s famous article, ‘Legal Culture and Transformative Constitutionalism’, (1998) 14 South African Journal on Human Rights 146 (1998), my exploration of the concept will not necessarily subscribe to all the valences that it has acquired in South Africa. The articulation of transformative constitutionalism in this book, in its focus on constitutionalism’s impact on ‘institutional life and social practice’, also owes a debt to the founding texts of the US critical legal studies movement. See, e.g., Roberto Unger, The Critical Legal Studies Movement 53 (Cambridge: Harvard University Press 1983); and especially Robin West, ‘Progressive and Conservative Constitutionalism’, (1989–1990) 88 Michigan Law Review 641.

  39. Teitel, ‘Transitional Jurisprudence’, supra, 2014. As Terry Eagleton interpreted Walter Benjamin, ‘what drives men and women to revolt against injustice is not the dream of liberated grandchildren, but memories of enslaved ancestors’. Terry Eagleton, ‘Walking the Dead’, The New Statesman, 12 November 2009, available at https://www.newstatesman.com/ideas/2009/11/past-benjamin-future-obama. Justice Albie Sachs put a more poetic gloss upon the same sentiment: the purpose of a Constitution is to transform ‘misfortune to be endured into injustice to be remedied’. Volks v. Robinson, 2005 (5) BCLR 446, ¶222 (Constitutional Court of South Africa) (dissenting opinion of Justice Sachs).