30 21, 22, INDIAS UV NG CONSTITUTION his country today hasan idea or two about whathis country consttution ought co have, Granville Austin saw that as a dangerous situation! ‘We may note in passing that Pakistan, arising in roughly comparable circumstances, has had, and continues to have, difficulties in the matter of working a constitution grounded in Western law. Why Pakistan and India have taken such divergent courses in this domain isa question that cannot be addressed here. ‘When chs argument was rst presented publily (29 Dec. 2000 at Indian Sociological Conference, Thiruvananthapuram, Kerals), Professor Surendra Munshi asked: ‘If Gandhi was an “accident” in India, where ? It is also ‘urged that all performers of such sacred, historic deeds—demolishers of the Babri Masjid, fomenters of hate speech, church-burners, commanders-in-chief and all subalterns engaged in acts of sponsored ‘communal’ violence, supporters of ati and the self-styled enforcers of pseudo-Hindu aesthetics (Bajrang Dal activists) —should be spared even ‘a semblance of rigorous law enforcement. At the time of writing, they possess sovereign immunity, as befits plenipotentiaries ofa resurgent Hindu India, currently constituting a state within a state. 8. The ‘Matam’ of First Nations ‘The making of modern’ constitutions always constitutes a narative of violent appropriation af the peoples of the First Nations, which the dominant discourse on constitutionalism can scarcely privilege. The theme, however, was progpinent in the making of the Indian constitu: tion, Even as Nehru complained, in tabling the First Amendment, abo the theft of the Indian constitution (this magnificent edifice, he is already being purloined by lawyers and judges), Japal Singh said, ! memorably, on the very firs day of the Constituent Assembly thac the making of the Indian constitution was itselfan acc of theft, taking away | the forms of nationhood from the indigenous pedples of India. The ‘Nehruvian lamentation is, afterall, a triumphal narration ofthe griev- ing charismatic constitutional élite at judicial incursions on their sovereignty Jaipal Singh's matam represents, in contrast, the epic of sorrow of the millennialy deprived peoples. Ihave elsewhere described (in an art slein the Delhi Law Review, cirea 1987, and an unpublished theme paper presented at che international conference on the rights of subordinated peoplesat the University of La Trobe), the significance of she contrast between self serving and historically redeemable forms of constitutional grief Unsurprisingly, che constitutional response isto deny any and all claims for continuing to exercise the right to self-determination. Not32 INDIAS LIVING CONSTITUTION unexpectedly, the result has been a long sate of civil was, though not thus described, in the north-east. The impact of this civil war upon the formative practices of Indian constitutionalism has yet to be written, but this much is clears radical claims to self-determination (secession) have been delgitimated, All hac remains permissible isthe translation of residual autonomy aspirations into federal adjustment (that i, the creation of new states status within the Indian Union). This, too, has been achieved at great human rights cost—as the history of the trans- formation of the north-east into so many states, and the recent creation of three new states, from the belly of the Indian beast (Ustar Pradesh, Madhya Pradesh, and Bihar) records, Proliferation of culeural and po- litical identities ternains sensible only within the parameters of federal cartography. ‘The fact that redrawing the federal map rarely signals the beginning of the end of internal colonialism within the nation has left very litde impress on Indian consticutional theory and practice. Nor has, as far as. ‘one can tell, che highly innovative device of legislative reservations in the Indian parliament for the ‘scheduled tribes’ achieved any signifi- ‘ant reversal of an excractive, neo-colonialist partern af devolution of power. The most natural resource-rich areas of federal India are also che areas in which, forthe past half century, the highest rate of mass impov- ctishment is sustained and it is no coincidence that these are also the areas where indigenous peoples live.» Unfortunately, leading constieu- tional law, and even political theory, treatises have little space for this subject. The inaugural constitutional sigh of Jaipal Singh hovers across ‘many a vaunted constitutional developmentduring the past fy years. 9, Subaltera Critiques: Cornerstones as Tombstones ‘One overarching way of describing this genre, this conglomeration of * and embodies a resilient rape cultaee. ‘eis on this register that cultural postmodern critics complicate sub- alter critiques, in that they denounce che constitution, including its notions of secularism, as exemplifying the ‘demonology’ of the spirit of modernigy. For Ashis Nandy, for example, constitutional secularism is as detestable an aspect of ‘modernization’ as the techno-scientific model of Indian development (1985.) However, this form of const tutional nihilism, responsible as well as irresponsible, portraying the constitution as a liability, eenders it iable to dite labours of kar sevas the missionary social work aimed at its swift and thoroughgoing demo- lition. The new form of kar seva was inaugurated on 26 January 2000 when the present national, globalizing regime dedicated itself to che celebration of its golden jubilee, ironically, by announcing a commit- tee for its rewriting.® 10, The ‘Inconcludable’ ‘This essay provides suffering exploration of what Jean Frangois Lyotard describes as the differend, clashes of phrase regimes that must Zorever remain incommensurable. The fury tales and the horror storiss pose ‘numerous challenges to any ‘master narrative of Indian consticutional- ism. None may be wholly privileged. Each destroys hegemonic narrative ‘THE (IMPOSSIBILITY OF CONSTITUTIONAL JUSTICE 455 monopolies. Both profile distinctive dynamic ofthe (ima) posibility of constitutional justice. ‘True, in a comparative perspective, the Indian constitution marks «historic break with ‘modern’ consticutionalism, of the colonial and Cold War genres, and its impact on the constitutionalism of the South is indeed striking, even pervasive, The normative discontinuities ae, indeed, astonishingly inaugural.®! Whatever be the point of arrival, the poinc of departures, indeed, startling. No previous constitutional model envisaged such an explicit and comprehensive transformation of 1 ‘raditional’ society and installed a description of a constitutionally —cirizens, the project affected peoples who remain subjects of rate practices of lawless development Sobhanlal Datta Gupta, Juice and Political Onder in india, Fema KL. Mukthopadhyaya, Calcutt, 1979. U. Basi, Mans Law and usc: Indien Pospecives,N.M, Tiipathi, Bombay, 1993 Especially by leading the opposition co the device of imposition of Presidents Rule on states, and effectively critiquing arbitrary interference With autonomous governance, well archived by the Sarkaria Cornmisson: Repors of the Commission on Centre-Stare Relations (2 vols), Govt. of India Press, Nasik, 1988, C. Ake, ‘The Democratization of Disempowetmen, in Jochen Hippler (cai), Demoentization of Dirempowerment, Plato Press, Landon, 1995, pp. 70-89. Bur see the extraordinary churning reflected in the documentation prepared by the Committe of Concerned Citizens, ln Search of Demoerdtic ‘Space: Documensaton of te Effors by the Commitie of Concerned Citiaens@ 58, 59, a INDIAS LIVING CONSTITUTION G. Aloysius, Nationalion Without a Nation, Oxford Univesity Press, New Delhi, 1998. U. Baxi, ‘The Kar Seva ofthe Indian Constitution?” Jean-Frangois Lyotard, The Different: Phaze in Dispute, 1992, New Haven, Yale Universy Press: Georges van den Abbece, trans. Indeed, from that point of view, the imaginative features of the Indian ‘constitution ae constituted by its salienc departures fiom the paradigm (of ‘modern’ constcutionalism. Icconstructs, fst, the ordering principles cof legicimacion of state power, such that make legtimation wholly prob- lematic, creating practices of public opinion and ‘democratic will for- mative practices (of Jigen Habermas, Berween Faces and Norms) that enable contestation concerning political practices of eruely as wel a imposition of the law and che consticution as political far. Second, it ‘marks the practice (and the continuing possibility) ofnaming orders of radical evil inthe Indian state and civil society. Ina creative departure from the classical liberalomodern notions of human rights, the Indian constitution addresses not just the stae as a violator of human rights but also formations of power in evil sociery 28 millennially originary sites, Articles 17 (constitutional abolition of uncouchability) and 23 {providing forced labour, raffickingin human beings, egar) ace moni- ‘mentally addressed to civil society. Third (chanks co Ambedkat) the constitution also innovates participatory rights: rights ofthe underclasses (the Dalits, the arisudras, the millennially dispossessed, disadvantaged, and deprived masses of India—U. Baxi, ‘Justice as Emancipatio Bubasaheb Ambedkar’ Legacy and Vision, pp. 122-49; Mare Galanter, Competing Equalitie Law and the Backward Clases in India, Oxford Universcy Press, New Delhi, 1984—to representation in the vices ofthe states and legislatures, Fourth, the constitution, chrough its distinction between fandamental rights and directive principles of state policy, also innovates che international egime ofhuman rights. I presages the distinction berween the Covenant on Civil and Political Rights rights centile, as itwere, to her-and-now judicial enforcement) and the Cov- «nant on Social, Economic and Culcural Rights (subject toa regime of ‘progressive relizatio’). Assurances of minority’ rights are spectacularly enshrined, Fifth, che constitution, defines development es those gover- nance policies which accomplish a diproperionate flow of rights and beneficence to the arindras or the Dalits. The regime of representation inthe Indian constitution is thus inherendy, and innovatively, people- ftiendly. Sixth, contrary o the ‘original intent (if such phrase-regimes are meaningful), the Supreme Court of India becomes the Supreme Court a. ‘THE (IMPOSSIBILITY OF CONSTITUTIONALJUSTICE 63 {for Indians. This happens initially through the logies and paralogics of ‘Kecavananda Bharat, by an unprecedented assertion of judicial power to review and annul, on the grounds of basic structure, amendments duly made by parliament, and then by the explosive invention of social litigation, democratizing judicial access and redefining the mis- sion of activist adjudicatory power and policy. See Jacques Detida, The Spectre af Marc: The State of Debs, the Work of Mourning and she New International, Routledge, London, 1994.