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Constitution contains a kindred concept of justice, asks a citizen to be responsive to sufferings of co-citizens

It is unnecessary to cite many more features but perhaps it is sufficient to say that ours is not entirely a “liberal” constitutionalism and one needs to appreciate the context of the poignant realities of Indian Partition in which this miraculous document was conceived by far-sighted composite figures.

Written by Upendra Baxi |
Updated: June 6, 2019 7:31:31 am
Indian constitution, constitution of india, right to live, indian constution articles, Indian partition, indian constitution freedom, express opinion The Constitution we have adopted is not “liberal” but “post-liberal”.

The triumphal moment of Modi 2.0 has led to sincere felicitations by all citizens, but the insidious phrase “left liberals” has resurfaced and pleas have been already aired for a “re-invention of liberalism”. What matters for political and civic discourse is not name-calling but rather the tolerance of the intolerable — disrespect for dissent, encouragement for practices of ethnic violence, caste or community-based lynching, and production of social indifference towards states of injustice and human rightlessness. It does not matter for those murdered, and the survivors, whether all this is produced or reproduced by left, right, or centre; all that they insist on is strict scrutiny now and prevention of re-occurrence, regardless of the political labels we choose to affix on the opponents. All political cadres and leaders must encourage and practice the vital difference on which a democratic order is premised — the difference between the “adversary” and “enemy”.

To avoid “the necrology of the meaningless discourses” (as Paul Ricoeur describes it), one has to internalise what democratic belonging to a political community may mean. Good old Aristotle distinguished the two aspects of citizenship: A citizen is a being that knows how to rule and how to be ruled. A democracy views political belonging in terms of a congregation of co-citizens. That is the very meaning of what the constitutional Preamble means when it refers to the value of “fraternity”. Fellow-feeling means that everyone must learn to be a co-citizen first, and then a ruler or a ruled. It is certainly not being anti-national to take the Constitution seriously as providing the means and ends of good constitutional governance and conscientious resistance (peaceful dissent).

If so, one must follow the conception of being a constitutionally sincere co-citizen — a conception outlined by the Indian Constitution itself in the Preamble, Part III (fundamental human rights), IV (the directive principles of state policy), IV-A (fundamental duties of co-citizens), and the oath of office that certain political co-citizens and justices take under the Third Schedule. How far the citizen rulers and the ruled have followed this credo requires deep study. But to call anyone attempting to examine this as “left-liberal”, “alt-right”, or by any other name, is in itself constitutionally unjustified.

The Constitution we have adopted is not “liberal” but “post-liberal”. First, no constitution in the world contains basic rights that avail not against the state but to civil society: The rights against untouchability (Article 17) and against “exploitation” (Articles 23 and 24) are collective rights of discriminated peoples. They are declared constitutional offences, and the whole scheme of Indian federalism is set aside by casting a legislative duty on Parliament.

Second, all Article 19 civil and political rights are declared subject to “reasonable restrictions” imposed by the legislature. Third, Article 21-guaranteed rights of life and liberty are immediately followed by Article 22, authorising preventive detention. Fourth, as Justice M Hidayatullah wryly remarked about the Ninth Schedule, “ours is the only Constitution that needs protection against itself” (though now the Supreme Court may co-determine what new legislations curtailing rights can still be placed in that Schedule). Fifth, the power to impose President’s Rule on states may be exercised by the Union but is subject to the process of judicial review. Sixth, a large number of draconian security legislation have been upheld by the Supreme Court, including some colonial laws violating fundamental human rights. Seventh, respect for international law required by Article 51 does not result in enacting even an enabling legislation on custodial torture, let alone a fully-fledged adherence to the nearly universal convention against torture and inhuman, cruel or degrading punishment or treatment. Eighth, the judicially developed law against sexual harassment at the workplace continues to be stymied at almost all sites.

It is unnecessary to cite many more features but perhaps it is sufficient to say that ours is not entirely a “liberal” constitutionalism and one needs to appreciate the context of the poignant realities of Indian Partition in which this miraculous document was conceived by far-sighted composite figures. They evolved a Constitution for an uncertain future, reconciling somehow the four antinomic ideas: Governance, development, rights, and justice. Their task is still with us.

The Constitution can be read (in the words of political philosopher Iris Marion Young) as a movement away from the liability-based “blame model of responsibility” to a “shared political responsibility model”. The key idea is that we accept “a responsibility for what we have not done”, simply because many “cases of harms, wrongs or injustice have no isolable perpetrator, but rather result from the participation of millions of people in institutions and practices that result in harms”.

This conception requires an acknowledgement that some people “bear responsibility for injustice does not necessarily absolve others” and it renders problematic “the normal and accepted background conditions of action”. Rather than to “apportion blame and shame”, mechanisms which “trigger shared responsibility” are to be preferred. And this “involves coordination with others to achieve… change” if only because it is “more forward-looking than backward-looking”.

The Constitution contains a kindred concept of justice. Read as a whole, it says in one sentence that only that development is just which disproportionately benefits the worst-off, or the constitutional have-nots. This articulation does not surprise the non-millennials who still recall the favourite song of Mohandas Gandhi (written by Narsinh Mehta): Vaishnava jan to tene re kahiye, jo peed parai janne re (a Vaishnava is one who knows the pain and suffering of others). To be a good citizen is neither to be a liberal, Marxist or a Hindutva person, but to be and to remain responsive to the sufferings of co-citizens and persons.

This article first appeared in the print on June 6, 2019 under the heading “The constitutional citizen”. The writer is professor of law, University of Warwick,and former vice chancellor of Universities of South Gujarat and Delhi

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