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Saturday, July 31, 2021

A lover’s quarrel

Saving the Constitution is not about rescuing a text, it is about renewing a commitment to each other

Written by Pratap Bhanu Mehta
Updated: January 26, 2019 12:48:40 pm
republic day, republic day 2019, India republic day, constitution of India, India constitution, indian express columns, pratap bhanu mehta, indian express We ask: What does the Constitution “say”? If we just discovered what it says, it would bind us. Or sometimes we veer to the opposite view.

It is an act of piety to think of our constitutional founding in grand terms. Does it mark a new beginning? Does it give India a new identity? Does it articulate a new horizon of justice? We all have our professional predilections in terms of which we judge the Constitution. Philosophers see the Constitution in terms of neat first principles, politicians as messy political compromises. Economists will get exasperated at its inefficiencies, and lawyers see it as anything that will convince whimsical judges.

We speak of the Constitution as if it were a thing: A self-evident truth, recourse to which can resolve all our disputes. We ask: What does the Constitution “say”? If we just discovered what it says, it would bind us. Or sometimes we veer to the opposite view. The question is not what the Constitution says. But what we can get the Constitution to say. It does not make us, as much as we make it.

We often appeal to the people in underwriting the authority of the Constitution. After all, it is promulgated in our name. But who is the “people”? The abstract sovereign invoked as authors of the Constitution? Or those whose lives it seeks to regulate? Or is it even a single people at all, rather than a multitude of groups, each jostling to set the terms of the social contract that will underwrite the Constitution? Sometimes we even quarrel over who is included or excluded in the “people.”

Then there are the substantive disagreements. Is the Constitution a charter of liberty? Or does it give as much licence to regulate liberty in the name of public order? Is it an instrument of radical equality or is its aspiration more ameliorative? Does it protect property or threaten it? If so, whose property does it protect? Does it limit state power, or give it more unchecked licence than necessary? Does it aim to mould society in a rationalist image, where every association should correspond to constitutional norms? Or does it have a more pluralistic vision, preserving a core of political equality while letting a myriad social forms, some liberating, some oppressive, bloom? Does it give religion too much space or does it marginalise it too much? Does it claim to expand the zone of individual freedom or does it reinforce the tyranny of compulsory identities?

Does it enjoin a separation of powers or does it let judicial power ride roughshod over everything? Does it protect India’s federal diversity or is it the handmaiden of a centralising project? Should minority rights be construed as protection against discrimination, or privileges that carve out special exemptions? Does the practice of our secularism reflect the Constitution or does it constitute a betrayal? What is this thing called basic structure? Is it the substance of democracy or does it extend to forms as well? Is democracy basic structure, or the parliamentary form of it? Does constitutional language extend to everything from tort claims to mundane administrative law?

Then there are the large questions outside of the Constitution. Does this Constitution meet Indian society at least half way? Are some of its provisions too early in our development or too late? Who makes the Constitution? The Constitution that is imagined by marginalised groups as a charter of their emancipation or the Constitution imagined by the privileged as stalling revolution? And what about those dark spaces of conflict and violence, where constitutionalism breaks down? What about constitutional violations made in the name of ensuring the Constitution does not become a “suicide pact?”

How does a Constitution produce its own order? Where is the Constitution made and unmade? In the casuistic reasoning of lawyers? In the popular imagination? In parliament? There are also other paradoxes. Constitutions are meant to usher us into the future; they belong not to “past dawns but to noons of the future,” to use Aurobindo’s phrase. But many would argue they are modernity’s form of ancestor worship: We feel bound by decisions taken in the past. We mythologise them to have an eternal hold over us. When we say something is unconstitutional, the implicit claim is that if something has to carry normative authority it must be in the Constitution; even the change in Constitution must be contained within it to carry any authority. In this sense, modern jurisprudence scholars are like Mimansa pandits: Trying inventively to show that everything that is of normative value must already be contained within the Vedas. Warring parties in a religious conflict claim God to be on their side. Woe betide anyone who does not claim the Constitution to be on their side. Both radicals and conservatives want to claim it.

So given these inner conflicts of our constitutional inheritance, what precisely did we inherit on January 26 1950? To be sure, one can tell a whiggish story. The Constitution is a slow but steady expansion of liberty and equality, institutionalisation of an accountable state, and the creation of a new collective power that is capable of acting in concert to chart its own destiny. Its success is that it has endured, different parties repose their faith in it. There is much that is true and empowering about this story.

But behind our constitutional experience is a deeper and messier story. For the truth is what we got in 1950 was not settled precepts, total emancipation from the past, or moral truths that are self evident to everybody. What we got was what constitutional scholar Elvin Lim, in another context, once called a lover’s quarrel, that has both romance and exasperation, mutual commitment and an occasional sense of betrayal, the easy contempt that comes from familiarity, and the mystery that comes from indecipherability.

The constitutional project is not a leap of faith in a thing called the Constitution, it is a leap of faith in each other. Its controversies cannot be settled by something called “the constitutional text”; it can be settled only by a mutual consensus. When we say the Constitution is in danger, what we are really saying is not that we violated the injunctions written down by some dead people. What we are really saying is that we risk falling out of love with each other — we no longer cherish the quarrels, we long for civil war. Saving the Constitution is not about saving a text, it is about renewing a commitment to each other, or to use that most neglected constitutional word: Renewing fraternity. Happy Republic Day!

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