How does the world’s longest written Constitution develop an organic relationship with its citizens? In this interpretative essay, Kalpana Kannabiran makes the case for the ‘Constitution-as-commons’, drawing attention to India’s dynamic history of being a deliberative democracy, where the demand for civil liberties and rights has underlined the untenability of constitutional interpretation being limited to courts alone.
As we mark the 75th year of Indian independence, a close look at the development of an idea of justice in India is apposite. What are the liberating energies fostered by an argumentative, insurgent Constitution and what are the sites these energies cascade to? Struggles for civil liberties have been central to our understanding of politics, resistance and deliberative democracy. The juxtapositions between legislative bodies, courts and citizen mobilisations at different points in the history of the Constitution offer valuable insights on the power of dialogue — ruptures and retrievals. This history, I argue, enables the birth of the idea of the Constitution-as-commons by pointing to the untenability of constitutional interpretation crafted within courts alone. I offer a few illustrations.
Courts and the Question of Fundamental Rights
Of the many issues foregrounded by courts of different jurisdictions in the 1950s, the breach of fundamental rights embedded in the Constitution in its founding decade underscore for us the significance of out-of-court enunciation of civil liberties in moulding courtly understandings in the later decades. The arguments by Communist leader A. K. Gopalan challenging preventive detention (which had to wait till the Puttaswamy judgment in 2017 to be recognised as just by the Supreme Court of India in its reinstatement of the dissenting opinion), and the challenge to reservations by Champakam Dorairajan which was reversed immediately by the Constitution (First Amendment) Act, 1951 that reinstated the Equality Code in substantive terms, are two critical signposts of enduring concerns of social justice in independent India. A third that continued through the 1950s in locales far away from the frontiers of the north, west and east was the question of citizenship and its reverberations in courts of different jurisdictions hearing claims of returning Muslim migrants in the decade after Partition in 1947. As Ansari Begum insisted in 1958, ‘Madras is the only place to which we belong’ — not Pakistan, not India, not Hindu, not Muslim, but a Tamil woman from Madras (Kannabiran and Tella 2022). In 2019, this reasoning was rolled back to an assertion of the denominational basis of citizenship embodied in the Citizenship Amendment Act, 2019. The specific contexts of each of these cases and the dialogic interlinkages they pointed towards differ — yet they cohere in ways in which civil liberties were framed as citizenship.
The latter half of the decade of the 1960s and 1970s witnessed a shift with the civil libertarian challenge to impunity and the insistence on state accountability focusing on a sharp critique of policing, torture and extra judicial murder (‘encounters’) — especially in the wake of Naxalbari in Bengal and Andhra Pradesh. Conspiracy cases, custodial deaths, disappearances, the criminalising of dissent, speech and expression, preventive detention and sedition opened out technologies of rule by maiming that culled efforts to ‘wage war against the state’ and ‘promote disaffection towards the government’.
There were also other ways in which disaffection was expressed. We are today reminded time and again about our duties which must take precedence over rights. The 42nd Amendment to the Constitution in 1976 introduced the chapter on Fundamental Duties, Article 51A during the Emergency, of which clause (h) spoke of the duty ‘to develop the scientific temper, humanism and the spirit of inquiry and reform’. Between 1975 and 1977, scientist P. M. Bhargava led a group of scientists, educators, fabricators and artists in Hyderabad in collaboration with the National Council for Educational Research and Training (NCERT) to put together an exhibition of the Method of Science in furtherance of this duty supported by Indira Gandhi during Emergency. With her defeat in the general elections in March 1977, the exhibition disappeared from Bal Bhavan in August 1978 — stolen, Bhargava alleged, ‘on the orders of the then Minister of Education in the Janata government….’ The method of science, in Bhargava’s view, challenged authoritarian government and its fundamentalist politics (the terms he used to describe the newly installed Janata regime). The absolute unwillingness of courts and governments alike — then, as now — to call out ‘godmen’, debate ‘science and dogma’, expose ‘Science Baba’, or display a portrait of a ‘naked lady’ — were now being exposed and subjected to vociferous public debate.
Lawyers from Andhra Pradesh Civil Liberties Committee and People’s Union for Civil Liberties – Andhra Pradesh (PUCL-AP), who had challenged the Emergency a year earlier, now challenged the actions of the Janata government (Indian Rationalists Association Registered Society represented by M.V. Ramamurthi and M.V. Ramamurthi vs NCERT and P.M. Bhargava. Writ Petition No. 5904 of 1978, decided on 8 December 1979. Andhra Pradesh High Court. Unreported.). At this very moment, the Tarkunde Committee, the Bhargava Commission and the Muktadar Commission were investigating state violence under a Congress regime in the state during Emergency. The judges on the Method of Science bench had also heard the Emergency cases two years earlier. Unsurprisingly, authoritarianism under the Congress government and pusillanimous arbitrariness under the Janata government that succeeded it at the Centre were left in place with the courts rejecting the challenge and upholding state action.
Parliamentary Deliberations and Civil Liberties
Relevant to our purpose however, is the fact that each of these cases and more like them that followed, in different ways challenged statist, securitised, exclusionary interpretations of the Constitution by governments and courts, and opened out the meanings of social justice, the centrality of non-denominational citizenship, and the recognition of the centrality of a rights culture rooted in the vernacular to the founding of the Indian union — grounded in B. R. Ambedkar’s unforgettable words: ‘Political democracy cannot last unless there lies at the base of it social democracy … a way of life which recognises liberty, equality and fraternity as the principles of life…’, especially important in a society where graded inequality obstructs even the most minimal egalitarian moves.
Civil liberties movements on the ground opened up possibilities for important judicial and legislative interventions and dialogue that recognised and extended the work of fact-finding, leading to a cascading constitutional common-sense.
On 23 February 1973 (pp. 236–40), when the Naxalite Movement was ascendant, the health and well-being of jailed Naxalite leader Nagabhushan Patnaik was discussed at length in the Lok Sabha, the lower house of the Indian parliament. Parliamentarians went on record to state that he was ‘one of the finest and most devoted social workers’, that he was ‘the finest democrat and social worker’, that although one might disagree with his politics, he must be given the best medical treatment as ‘there must be human feelings in this matter’. Eighty parliamentarians across party lines signed an appeal to the prime minister and president for Patnaik’s release — recalled with a sense of pride in ‘progressive forces which are at the core of this’. The complexity of ‘disaffection’ animated parliamentary debate. Witness in contrast the obstruction of debate on carceral rule during the Covid–19 pandemic, especially the custodial death of Fr. Stan Swamy, where the National Investigative Agency (NIA) counsel chided a high court judge for his oral tribute to Fr. Stan in court.
The summer of 1977 saw parliamentary deliberations on the rights of political prisoners, their contributions to a democratic polity, detentions, ill-treatment, and deaths in custody — pointing to a different time and a different ethic of politics, that refused to be silenced by authoritarianism or governmental/administrative pusillanimity. The Lok Sabha debate on these questions on 15 June 1977 (pp. 217-24) saw Home Minister Charan Singh confronting a volley of questions across party lines on remedial measures of the new government for survivors of state violence. That state violence and police impunity, as also the limits (or lack thereof) of state accountability were debated at such length and with such rigour meant that human lives (dissident lives, importantly) were placed at the centre of an understanding of democracy mindful of all the risks dissidents might pose to government — irrespective of party in power.
Mass violence against Dalits and the normalisation of untouchability practices in violation of Article 17 of the Constitution led to the rise of Dalit mobilisation across the country against caste atrocity. The birth of the Dalit Mahasabha in Andhra Pradesh after the massacre of Dalits in Karamchedu in 1985 is an important turning point. The subsequent enactment of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, saw a four-hour debate on the bill on 16 August 1989 (pp. 19-108) in the Lok Sabha that opened the fields of atrocity out in region-specific ways, with members observing that ‘No man can get his rights through request. Rights are wrested from unwilling hands.’ Similarly, resisting the occupation of Adivasi homelands, and insisting on political representation and special protections in scheduled areas, the Andhra Pradesh Gondwana Sangharsh Samiti successfully challenged the move of the state government to extend the Andhra Pradesh Panchayat Raj Act in scheduled areas in the Andhra Pradesh High Court in the case of Arka Vasanth Rao in 1994. The Panchayat (Extension to Scheduled Areas) Act, 1996 that followed soon thereafter was debated at length in the Rajya Sabha (the upper house of the Indian parliament) on 12 December 1996 (pp. 292-342) and passed by both houses, with minister Yerran Naidu making specific mention of the legal challenge in Andhra Pradesh.
The focus on civil rights that calls for the fulfilment of state obligations (duties) is obscured today by presidential and ministerial sermons on the primacy of duties over rights where citizens are concerned. This insidiously inverts the rights–duties connection to one where the majoritarian state asserts its ‘right’ to force citizens to perform their ‘duties’. Also, in stark contrast to the cases recalled above, the judicial decriminalisation of homosexuality by the Delhi High Court in 2009 was followed by a Private Member’s Bill in the Lok Sabha on 18 December 2015 (pp 149–57) to amend the Indian Penal Code to legislatively decriminalise homosexuality. This motion was put to vote without debate and defeated 24: 71. A second Private Member’s Bill was introduced on 1 April 2022 (p. 1014) to amend the Special Marriage Act to introduce a provision for same-sex marriage — a motion introduced but awaiting resolution. Between these two vain legislative attempts, the Constitution bench of the Supreme Court in 2018 (Navtej Johar) reinstated the 2009 decision of the Delhi High Court (Naz Foundation) following from years of organising for civil liberties under the Constitution by LGBTQI+ collectives in the country. The pattern of parliamentary deliberations on the issue of civil rights for LGBTQI+ communities and persons shows a sharp downward turn like the treatment of Fr. Stan Swamy alluded to earlier, where citizen disentitlement is firmly entrenched through parliamentary declamations. This is evident also in the abrogation of Article 370 (‘The Jammu and Kashmir Reorganisation Act, 2019’), the Citizenship Amendment Act, 2019, and the enactment of the Indian Agricultural Acts 2020 (commonly referred to as the Farm Laws), for instance, where popular upsurge against constitutional dispossession wrests the power of constitutional debate and deliberations situating it in the public domains of social movements, citizen mobilisation on the streets and petitioning courts.
Conclusion
To return to a sense of history, we may recall Ambedkar’s plural approaches to the abolition of untouchability and the annihilation of caste and the Hindu social order, that engaged publishing, protest, petitioning, litigation, voting rights, reservations, and constitutional proscription commencing in right earnest in 1917 (Geetha 2021). We may also remember Gandhi’s early mobilisation of lawyers to document testimonies and evidence on the suffering of indigo farmers in Champaran in 1917 very soon after his return to India (Amin et al., Thumb Printed, 2022, ; see also Kumar 2015). And of course the civil liberties petitioning and advocacy on issues ranging from state violence to political representation and reservations to repeal of repressive laws in independent India (Kannabiran, K.G., 2022). What is particularly interesting are the ways in which the practice of politics and indeed constitutionalism travels from civic resistance to courts and legislatures and back to civic resistance in times when the institutional apparatuses of the constitution face debilitating erosion — returning to become a wayfinder for an agonised judiciary, rupture and retrieval/resurrection/struggle holding promise. This, after all, is the essence of the Constitution-as-commons — peoples’ collective possession of the Constitution, which includes usufruct and (insurgent) interpretation. Together, in their interweaving, these are archives that help us comprehend and map the indefeasible genealogies of civil liberties and constitutionalism in India well into the present-futures.
The views expressed here are those of the author and not of the ‘South Asia @ LSE’ blog, the LSE South Asia Centre or the London School of Economics and Political Science.
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