40. And, as in the case of the great legal codification projects, of experimenting upon them. See, e.g., Elizabeth Kolsky, ‘Codification and the Rule of Colonial Difference’ (2005) 23(3) Law and History Review 631.
41. For an understanding of how these individual rights exist in a ‘co-equal’ relationship with democratic participation, see Jurgen Habermas, Between Facts and Norms (Cambridge: MIT Press 1996). For recent monographs highlighting the place of rights in the Indian constitutional scheme, see Madhav Khosla, The Indian Constitution: A Short Introduction (New Delhi: OUP 2012); Arun Thiruvengadam, The Constitution of India: A Contextual Analysis (New Delhi: Hart Publishing India 2017).
42. Ananth Padmanabhan, ‘Rights’ in The Oxford Handbook of the Indian Constitution, supra, 581, 582.
43. Cathi Albertyn and Beth Goldblatt, ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 South African Journal on Human Rights 248, 249; Dikgang Moseneke, ‘Transformative Adjudication: The Fourth Bram Fischer Memorial Lecture’ (2002) 18 South African Journal on Human Rights 309.
44. See e.g., Nick Dirks, Castes of Mind: Colonialism and the Making of Modern India (New Jersey: Princeton University Press 2001); Sudipta Kaviraj, Trajectories of the Indian State: Politics and Ideas (Ranikhet: Permanent Black 2010); Radhika Singha, A Despotism of Law (New Delhi: OUP 1998), and the work of Christopher Bayly; Mark Juergensmeyer, Religious Rebels in the Punjab: The Ad Dharm Challenge to Caste 143 (New Delhi: Navayana 2009), noting the absence of centralized authority and the prevalence of political competition between different groupings; see also, Partha Chatterjee, describing the thought of Rabindranath Tagore—‘the laws of the state had limited jurisdiction and were subordinated to the rules of right conduct prescribed by community practices’—in ‘Nationalism, Internationalism, and Cosmopolitanism: Some Observations from Modern Indian History’, (2016) 36(2) Comparative Studies of South Asia, Africa and the Middle East 320, 331.
45. Sudipta Kaviraj, The Imaginary Institution of India 12 (Ranikhet: Permanent Black 2010).
46. Christopher Bayly, Recovering Liberties: Indian Thought in the Age of Liberalism and Empire 35–36 (Cambridge: Cambridge University Press 2011).
47. Anupama Roy, Gendered Citizenship: Historical and Conceptual Explorations ix (Revised ed., Hyderabad: Orient BlackSwan 2013).
48. Sudipta Kaviraj, ‘Ideas of Freedom in Modern India’ in The Idea of Freedom in Asia and Africa 97, 108 (Stanford: Stanford University Press 2002).
49. Article 19(1)(a), Constitution of India. While Gandhi’s own vision of a decentralized India founded upon independent village-republics was never seriously considered by the Constituent Assembly, his impact upon the thinking of the Congress Party that he led for three decades—and which constituted a bulk of the Assembly—cannot be underestimated. Gandhi’s public commitment to the freedom of speech and association as foundational values of the new order is evident from his speech at his sedition trial, his address at the 36th Congress Session in 1921, and from his writings in Young India. See, e.g., B. Pattabhi Sitaramayya, The History of the Congress 380 (Madras: Law Printing House 1935).
50. These three words, of course, bring with them two centuries of contestation, and are not in themselves determinative of a transformative purpose. It is how a particular Constitution chooses to understand them that determines whether, and to what extent, it is transformative.
51. Parliament of India, Constituent Assembly Debates, Vol. XI, 25 November 1949 (speech of Dr B.R. Ambedkar), available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C25111949.html, visited on 25 May 2018.
52. It is a common misconception that the colonial regime did not enforce caste distinctions and gave to India ‘the rule of law’. The most notorious example was the Bombay Government’s refusal to enrol a Mahar student (who had converted to Christianity) in school, because other students refused to share the same physical space. Anupama Rao, Caste Question: Dalits and the Politics of Modern India 71 (Ranikhet: Permanent Black 2010). See also, the injunction granted by the Office of the Legal Remembrancer in Bombay, prohibiting Dalits from taking water from the Chavdar tank, until the main suit on the issue was decided. Ibid., 83. Some of these issues are discussed in greater detail in Chapter 5.
53. Parliament of India, Constituent Assembly Debates, Vol. XI, 25 November 1949 (Speech of Dr B.R. Ambedkar), supra.
54. See, e.g., Roberto Unger, False Necessity 164 (London: Verso 2001): ‘Society becomes denaturalized to the extent that its formative practices and preconceptions are open to effective challenge in the midst of ordinary social activity.’
55. Cathi Albertyn and Beth Goldblatt, ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’, (1998) 14 South African Journal on Human Rights 248, 249.
56. These are the words of a former Deputy Chief Justice of the South African Constitutional Court. See Dikgang Moseneke, ‘Transformative Adjudication’, supra, 318–19.
57. See e.g., B.R. Ambedkar, ‘Castes in India: Their Mechanism, Genesis and Development’, (1917) XLI Indian Antiquary, available at http://www.columbia.edu/itc/mealac/pritchett/00ambedkar/txt_ambedkar_castes.html. This was originally a paper presented by Ambedkar at an anthropology seminar at Columbia University. See also Eleanor Zelliott, Ambedkar’s World: The Making of Babasaheb and the Dalit Movement 70 (New Delhi: Navayana 2012). See also Ian Shapiro, ‘On Non-Domination’ (2012) 62 University of Toronto Law Journal 293.
58. The Framing of the Constitution: Select Documents, supra, 11, 12.
59. See, e.g., Lal Zenda Coal Mines Mazdoor Union (CITU) v. Western Coalfields Ltd. (2015) 3 Bom CR 413, where the Bombay High Court invoked fraternity to override the express terms of a statute, and compel the members of a trade union to contribute to the Prime Minister’s National Relief Fund. See also, Subramanian Swamy v. Union of India (2015) 13 SCC 356, where the Supreme Court invoked fraternity (!) to uphold the constitutionality of criminal defamation.
60. Michael W. Dowdle and Michael A. Wilkinson, ‘Introduction and Overview’ in Constitutionalism Beyond Liberalism 1, 12 (Michael W. Dowdle and Michael A. Wilkinson eds., Cambridge: Cambridge University Press 2017).
61. ‘Comments and Suggestions on the Draft Constitution’, The Framing of India’s Constitution: Select Documents, Vol. 4, p. 3, 5 (Gurgaon: LexisNexis 2015).
62. See e.g., Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge: Harvard University Press 1989); Will Kymlicka, Multicultural Citizenship: A Liberal theory of Minority Rights (Oxford: Clarendon Press 1995).
63. As a young Ambedkar trenchantly remarked, ‘The atomistic conception of individuals in a Society so greatly popularised—I was about to say vulgarised—in political orations is the greatest humbug.’ B.R. Ambedkar, ‘Castes in India’, supra.
64. Parliament of India, Constituent Assembly Debates, Vol. VII, 4 November 1948, supra (speech of Dr B.R. Ambedkar). Attempts to introduce a provision affirming the sacredness of the family into the Constitution, on the lines of the Irish Constitution, did not succeed. Attempts to make the ‘village republic’ the basic unit of the Constitution failed likewise. See, e.g., Parliament of India, Constituent Assembly Debates, Vol. VII, 22 November 1948, available at http://164.100.47.194/Loksabha/Debates/cadebatefiles/C22111948.html.
65. S. Krishnan v. State of Madras, 1951 SCR 621, ¶43 (dissenting opinion of Justice Vivian Bose)
66. Admittedly, ‘citizenship’ is itself a limited, and often exclusionary, prism.
67. Dowdle & Wilkinson, ‘Introduction and Overview’, supra.
68. Dowdle & Wilkinson, ‘Introduction and Overview’, supra, 17; see also Dieter Grimm, Constitutionalism: Past, Present, and Future (Oxford: Oxford University Press 2016); Seyla Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (New Jersey: Princeton University Press 2002).
69. Dowdle & Wilkinson, ‘Introdu
ction and Overview’, supra, 17. Hailbronner argues that it was also the default position in German pre-war constitutionalism. See Hailbronner, Traditions and Transformations: The Rise of German Constitutionalism 46 (Oxford: Oxford University Press 2015).
70. The phrase is Corey Robin’s. See Corey Robin, The Reactionary Mind 15 (2nd ed., New York: Oxford University Press 2017).
71. See, also, Karl Klare, ‘Legal Culture and Transformative Constitutionalism’, supra, 151, arguing that one of the purposes of the post-liberal, transformative Constitution is the ‘extension of democratic ideals into the “private sphere”’. Here again, the Indian Constitution anticipated future developments in the West. See e.g., David Sciulli, Theory of Societal Constitutionalism: Foundations of a non-Marxist critical theory (Cambridge: Cambridge University Press 1992), developing the concept of ‘social authoritarianism’; Elizabeth Anderson, Private Government: How Employers Rule Our Lies (and Why We Don’t Talk About It) (New Jersey: Princeton University Press 2017).
72. Austin, The Indian Constitution, supra.
73. Article 37, Constitution of India.
74. Pratap Bhanu Mehta, ‘What is Constitutional Morality’, (2010) 615 Seminar: We the People, available at http://www.india-seminar.com/2010/615/615_pratap_bhanu_mehta.htm, visited on 25 May 2018.
75. Parliament of India, Constituent Assembly Debates, Vol. VII, 15 November 1948 (speech of Dr B.R. Ambedkar). This point was emphasized by many of the framers during the Third Reading of the Draft Constitution.
76. As B.M. Gupte, in one of the last interventions before the Constituent Assembly, pointed out: ‘The Constitution is certainly not socialistic but there are unmistakable leanings towards socialism.’ Parliament of India, Constituent Assembly Debates, Vol. XI, 23 November 1949 (speech of B.M. Gupte), available at http://164.100.47.194/Loksabha/Debates/cadebatefiles/C23111949.html.
77. But see, Timothy Fish Hodgson, ‘The Mysteriously Appearing and Disappearing Doctrine of the Separation of Powers: Toward a Distinctly South African Doctrine for a More Transformative Constitution’ (2018) 34(1) South African Journal on Human Rights 57. Hodgson argues that, in the context of South Africa, a commitment to transformative constitutionalism requires rethinking the separation of powers that, in its traditional form, is inextricably linked with the structural-liberal paradigm.
78. Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’, (1985) 4(6) Third World Legal Studies 107.
79. See, infra, Ch. 3.
80. Maneka Gandhi v. Union of India (1978) 1 SCC 248.
81. See, e.g., the discussion in Hailbronner, Traditions and Transformations, supra, distinguishing between ‘reactive’ and ‘activist’ constitutionalism. The former is focused on limiting government power (e.g., the US), while the latter lays out a comprehensive vision for society (e.g., the South African). My point here is that the Indian Constitution is activist, but it does not contemplate an activist judiciary.
82. As the Chief Justice of South Africa (which first articulated the concept of transformative constitutionalism) noted, ‘… the Constitution itself entrenches the notion of different roles for the different arms of government’. Justice Pius Langa, ‘Transformative Constitutionalism’ (2006) 17 Stellenbosch Law Review 351, 357.
83. It is not within the scope of this book to go into the historical reasons for this, which include, among others, the fact that the Congress party’s composition made a thoroughgoing economic and social transformation impossible. The framers’ refusal to constitutionalize socio-economic rights is attributable, in part, to this. Borrowing from Gramsci, scholars have, therefore, labelled the process a ‘passive revolution’. See e.g., Sudipta Kaviraj, ‘A Critique of the Passive Revolution’, (1988) 23(45) Economic and Political Weekly 2429. See also, Pranab Bardhan, The Political Economy of Development in India (Oxford: Blackwell 1984).
84. The distinction is important. See, e.g., Pierre de Vos, ‘Substantive Equality after Grootboom: The Emergence of Social and Economic Context as a Guiding Value in Equality Jurisprudence’, (2001) 2001 Acta Juridica 52, 68–69. See also Michaela Hailbronner, Traditions and Transformations: The Rise of German Constitutionalism, supra, 3. It was also something that was recognized clearly by the framers of the Constitution, as is evident from many of the speeches at the third reading of the Draft Constitution. See, in particular, the speech of Shrimati Purnima Banerjee: ‘… this Constitution has provided us with the means for changing the structure of society’. Parliament of India, Constituent Assembly Debates, Vol. XI, 24 November 1949 (speech of Shrimati Purnima Banerjee), available at http://164.100.47.194/Loksabha/Debates/cadebatefiles/C24111949.html. As articulated in this book, therefore, the role of the courts in implementing the transformative Constitution is less ambitious than, for example, the role that many contemporary scholars assign to the South African courts. For a survey of relevant literature, see Hodgson, ‘The Mysteriously Appearing and Disappearing Doctrine of Separation of Powers’, supra.
85. And when the courts act in this manner, it brings with it its own pathologies. For a root-and-branch critique of the enterprise of PIL, see Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (New Delhi: Cambridge University Press 2017). Although I do not have space to develop this view further in this book, it is my contention that PIL has actively harmed the development of a rigorous transformative constitutionalism. By making Article 21 the repository for all socio-economic rights and all aspects of good governance, and by undermining constraints such as the separation of powers, PIL has provided courts with an easy way out: any social problem brought to the courts is shoehorned into Article 21 (and often with new-spun remedies), without active consideration of how a transformative Constitution would actually treat it. It is no surprise that, ever since the advent of PIL, there has been very little development in (for example) the substantive equality doctrine of the Court, or any rigorous understanding of fraternity.
86. Kannabiran, The Wages of Impunity, supra, 137. For a nuanced critique of the PIL enterprise, see S.P. Sathe, Judicial Activism in India (New Delhi: Oxford 2003). Defenders of PIL do not deny that it departs from the constitutional scheme, but argue that is justified on consequentialist grounds (in particular, legislative and executive inaction). For an essay that acknowledges the criticisms but concludes that on balance PIL is justified until ‘governance deficit shrinks’, see Shyam Divan, ‘Public Interest Litigation’ in The Oxford Handbook of the Indian Constitution, supra, 662.
87. See e.g., David Singh Grewal and Jedediah Purdy, ‘The Original Theory of Constitutionalism’, (2018) 127 Yale Law Journal 664.
88. For an articulation of precisely this point, see the speech of Shrimati G. Durgabai in the Constituent Assembly, at the third reading of the Constitution. Parliament of India, Constituent Assembly Debates, Vol. XI, 24 November 1949 (speech of Shrimati G. Durgabai), available at http://164.100.47.194/Loksabha/Debates/cadebatefiles/C24111949.html.
89. Etienne Mureinik, ‘A Bridge to Where? Introducing the Interim Bill of Rights’, (1994) 10 South African Journal on Human Rights 31.
90. The classic book on the subject of courts remains Gerald N. Rosenberg’s The Hollow Hope: Can Courts Bring About Social Change? (2nd ed., Chicago: University of Chicago Press 2008). For a more normative critique and for a useful survey of literature, again in a comparative perspective, see e.g., Eoin Daly, ‘Reappraising judicial supremacy in the Irish constitutional tradition’ in Judges, Politics, and the Irish Constitution 29–49 (Laura Cahillane et al. eds., Manchester: Manchester University Press 2017). See also Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press 2007). The most famous critique of the rights framework, on the other hand, remains Karl Marx, On the Jewish Question (1844), available at https://www.marxists.org/archive/marx/works/1844/jewish-question/index.htm. For a more modern critique, see the references in Gunther Fra
nkenberg, Comparative Constitutional Studies: Between Magic and Deceit 57, ff. 115 & 116 (Cheltenham: Elgar 2018). As Frankenberg writes: ‘Notwithstanding their indeterminate nature, ideological content, possessive-individualist connotations and negative side-effects, rights have been historically and still are the centrepiece of most constitutions.’ Ibid.
91. See Rohit De, The People’s Constitution: Litigious Citizens and the Making of Indian Democracy (forthcoming 2018). See also Sanford Levinson, Constitutional Faith (Revised ed., New Jersey: Princeton University Press 2011). Or see Laurence Tribe’s trenchant ‘I do not regard the rulings of the Supreme Court as synonymous with constitutional truth.’ Laurence Tribe, American Constitutional Law iii (New York: The Foundation Press 1978). For a summary of the major American writing on ‘popular constitutionalism’, see Hailbronner, Traditions and Transformations, supra, 37.
92. Robert Cover, ‘The Supreme Court, 1982 Term – Foreword: Nomos and Narrative’, (1983–1984) 97 Harvard Law Review 1, 19. One of the more famous books about the Supreme Court in recent times is titled Supreme but not Infallible (New Delhi: OUP 2001). See also the section titled ‘Multitudinous Constitutionalism’ in Upendra Baxi, ‘Preliminary Notes on Transformative Constitutionalism’ in Transformative Constitutionalism: Comparing the apex courts of Brazil, India and South Africa 19, 26–28 (Oscar Vilhena et al eds., Pretoria: Pretoria University Law Press 2013, available at http://nludelhi.ac.in/download/publication/2015/Transformative%20Constitutionalism.pdf). As the succeeding pages should make clear, however, this book does not share Baxi’s understanding of transformative constitutionalism; nor does it share his interpretive commitments.
93. Alessandro Portelli, ‘The Oral Shape of the Law’ in The Death of Luigi Trastulli and Other Stories: Form and Meaning in Oral History 241, 269 (Albany: State University of New York 1991). See also Robert Cover, ‘The Supreme Court’, supra.
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