ACCUMULATION AND LEGITIMACY : THE INDIAN CONSTITUTION AND STATE FORMATION* UpENpRA BAxit* Jawaharlal Nekré are here only five. But we 1991 ACCUMULATION AND LEGITIMAGY B ister. ‘The magnificence of the nthe prion of the Prime Mii ‘only be preserved by charis- complains ofthe theft of the Constitution. ‘as theft. The saga of the Cons 1ese two narratives of theft 1 ideology and practices sropertionately devoted to the corpus ordains the ways of governance, marking monic domination. And clearly the corpus of ‘social"4 DELHI AW REVIEW You. 13 further when we recall that save Part 10, a, save Part Tl, the other toxts are. pel Bortatory and have boon blitely regard as such nthe praca or eee cast botyoen the ‘governgre’ and xt age : doce no uggest de ants ‘wo. The ‘governance’ texts of tng unecessary forthe tasks L the creation of the Justified precisely by an app: ‘alone can att ‘successive regimes in power both at aro, at least, the mised product is ever manifest with ‘Nicos Poulanizas said cA and ideotagi ent Assembly there is simply no way to diseover the authorial i through ast through Bist Satan's Tama Maoh Ganges, Kashvant Singh's A Thats o Pat fr he hot sors of fate nthes yet another vecoy of story, ly edged nationstate.” Nana iat beens ich spproprats diteoute ot ‘That historic context also furnishes India becomes a cata Hy ben one Piaget sa, cant he vn SE eh emg ed 3. F, Chatterjee, Novonalist hough and : : gia Thought and the Colonial World : A Derivative Discourse 1991 ACCUMULATION AND LEGITIMACY 1s also elaborates al power in the mutuation of the federal federalism isto be the overall framework of the-mational, ‘benign auspices of a strong centre, charged with the mission of making a mation out of India, The enactment of brutal tion violence not just animates the reiteration of minority rights and st mn such as the provision, stemtion, and of imposi- tion of the President's rule and emergencies which could extend even to the suspension of the right to life of citizens. ‘And context shapes the design and detail of governance in myriad ways + ‘The state apparatuses are catalysts for accelerating ‘development’; the state is the planner and the provider and the hegemonic agency for the transfor- mation of civil society. Thus, for example, the centralized unity of state Power is to be preserved and promoted by executive power; the principle of the separation of powers is ordained to serve this dominant end. The legitimacy of executive power constituted through the operation of the ‘that the Indian National Congress is India's cipated for the decades to come the preeminence of tho party and within it Of its leader. “History had reserved that preeminence for Nebru. And no matter how the governance texts got furmulated, the imme; contained primatil Practices of parl also have been a comforting thought that the karta of the 2 pater familias was alrendy around. India, in hor first dom stood embodied in Jawaharlal Nebru. And this concentrati symbolic capital which even determined spondthrift endeavours have been unable to wholly erode. Itis this wrinkle of India’s destiny which furnishes the motif of Nehw’s agonized text quoted at the beginning of this paper. Govesnance geared to tasks of social justice was the province.and function of F Judges and courts charged with the duty to interrogate and. di lative and executive power at the bar of fundamental rights were not expected6 DRLET LAW REVIEW vou. 13, 1991 ACCUMULATION AND LEOTTIMACY n to do so in ways which too sharply limited the power. The fundamental rights were to be ri ‘aden, of cones but the. croutve and wisdom and ways of id interprotedby the lature also claimed the ‘Supreme mot just 2 superior, right and the power to read, as well as write ‘and rewrite the Constitution, The architecture of governance was designed to mute the archetypal dent classes are represented as bot especially in class-divided societies, perform this mnguages convert; British quit Indi equal recipients of promises of rights to equality. The ‘oldest equal before the lew and iborty, fraternity, dignity and register of dominane ‘Marx (and Engels} struggle they firmly had in view the di very ideology was to be imbued with 2 transcendent and mission. If the creation of extensive of the nation state, the justifica transformation of the Indian soci low, planning and administrat ‘Undoubtedly, the trajectory of the struggle remains constrained and conditioned by the foundational corpus of the Constitution, In @ very act of constitutionmaking marks 2 fo o ‘moment for the ascendent classes. For all his febrile rhetoric, to bo stror ted (in on to build a of just means. f tasks of justice had to be performed. But as Nehra formula blem of independent India was ‘The Constitution was a code ceme in 1976 into the Preamble ica Nehru Gandhi). Simi from confiscation and endless of foundatio: ‘The mandate for the Dieective Pris and economic transformation, crystallized in ‘so eribbed and confined by this organized munity, enjoins the formal subserve the common good.” Th mon and women equally.” Bi means of production” is not per se bad that it is so only when this concentration, rest + not allow provenance to Jaipal as theft. Rather, the principle of practices of power embodied in the Indian 4. Upendca Basi, “Dare Not Do Lille + Jawaharlal Nohm's Constitutional vision sand Tie Relovanco in the Eights and Beyond” in R. Dhavan and Thomas Pant (Gia, Hew ot he Contcon Jrhcone Sere ot lleB DELKI LAW REVIEW vou. 13, Ir concentration of wealth and means of production is in the short run sam instrament of denial of the “ight to adequate of India, but is seen as providing lihood in the Jong run, how ean one say that the state in thus ordering the economic system is violating ‘the command of the Constitution? And who is to decide excepting the historian of iongue duree wi 2 ‘The story of the cons of the ascendent classes, And, natural se classes will appropriate the Part Til freedoms to of their own ierests. The state has to allow procets of accu- ic capitalist course; the toxt of the Constit members of sd article 39(a) and the anguished articulat ‘The processes of primitive accumal of nation’s resources by and for the few; the theft of the Constitution points to the larceny of legitimacy by the’ dominant, from the ruling class formations, indepondent India's planning. The Constitution, al labourers, was replete with the guarantees a description which tucture the agcarian relat and sixties. ‘They clearly willed only such reforms as will be consistent 1991 ACCUMULATION AND LEGITIMACY 0 At the same time it was not eschew the radical rhetoric of reforms sustaining legitimacy. A complex way out was found in badly drafted reform legislations compounded by progretsive attenuation of the right to property from Part IIL, proclaiming security of tenants in ways. Which would allow resumption of land for ‘personal cultivation’ resulting in graver itsecu inadequate record of land rights, “secret” orders subverting implemen: i ding party cadres involvement in implementation n, and ambivalent support to far was added the process of judicial iments fhe holding. of agrarian assots by India’s leading s accomplished only that which they were indeologicall and professionally equipped (and even programmed) to do, the or roots issue of agrarian reforms got converted into the superstruct of the limits of judicial review power and the plenary power of the amend. ment of the Constitution. ~ Parliamentary discourse. And that was secur on of courts, This device, and the associated one of attentiating aid not bring even a moderate implementation of the aggregate ns regime. The revolut prudence’ was, of course, bloody abundance. 1 discourse elaborates the justices as subverting a cial discourse began to raise awkward ques ns, competence. and wisdom of the ex ‘ena of symbolic pursuit of agra- removed: that, n rian reforms, represented the political function ofthe Ni assertion of pari frustration of radical rhetoric. Con- ished to discipline the discourse of 5 | ie Indi Supreme Court the "Poverty, Suvcture Change and the in ARM, Menon (ed), Socal Justice and Social Process in fa 328880 DALAT LAW REVIEW vou. 13 translation of the English phrase) reinforcing the ship and the regime style, Both the landowners and the executive/Parlia- ‘ment used the courts for their own ends. “The dilemmas of accumulation and legitimacy reappear in the ta ‘but now more acutt ‘Supreme Court poses now no if ‘the pursuit of state capi heralded by the bank nationali it maintains in the Gol 12s late as 1967, its power to veto amend- ments which adversely affect to the point of abrogation of the fundamental rights in Part Iff. A determined Indira Gandhi regime unleashes the ‘twenty fourth and fifth amendments seoking to restore parliamentary (exceu- tive) hegemony. When the Gola Nath bar to the amendment of funda- ‘mental rights is removed (paving way to the eventual abolition of the right to property in the Janata regime) the doctrine of the basic structure of the jon now emerges imposing teasingly amor tations on ents (executive's) vast powers.? The massive i jon of state serving needs of accumulation is achieve« problem of ion remains, s sought to be solved by the elaboration of the doctrine of the ‘committed’ judiciary advanced as justification of the supersession of the three of the Kesayanandd® justices. ‘The discourse of ‘commitment’ signified, “judicial power of the state legitimated through the doctrine ‘of powers should serve as a mask of the centralized unity of “Commitment? symbolized the claim that the supreme judi- (the underlying the weitten one. ation in many smatters Gncluding const ‘emergencies, the president’s rule, the of ) simply refused to surrender their judicial and executive power of the ‘The contrast between the weitten and unwritten Constitutions forms 6. LC. Goloknath . State of Punjab, AIR 1967 SC 1643. 7. Upendra. Baxi, Courare, Craft and Contention: The Indion Supreme Court in the Eighties 112 (1985) snd the materials ited ther. 1991 ACCUMULATION AND LEGITIMACY a ence of the emergency. Unlike Constitution elsewhere (say in the United the supreme executive at Key points of the management of economy ant process of accumulation. The emergency regime is notable ly for the elevation of the norms of unwritten Constitution in the realm of the written Constitution as, for exam, i infamous habeas corpus case.° Tn Constitution maust operate as the pretation of the written one, conjinctie, the confuses a saute? the orgy overdsermined come, om conta, alarningly for IF they provide, at one level, powerful . + 5 ful mobilization ‘ 8 for dominance, they also provide equally powerful acticuaton of dissent, opposition even t0 the point of le ike at random a few more examples of the opemmess jonal text. If the languages of adult suffrage and free logic of representation have the peactices of “authoritarian "yes apt motion they have also femerated poweral tents of sesountbty tothe point of aeieation oft 10, Addl. Distt. Magistrate, Jabal v. Shiskant Shula, AIR 3776 SC Hiveant Shukla, 207. NIA. Simoniya, Dewi af Capitalism inthe Orient 1O-11 (985).82 DELI LAW REVIEW vou. 13 aatucal right of people to recall their representatives during the Total Revolu- tion movement. If the languages of security, which achieve their nadir of the chasm between “freedom” and “chaos” in Indira jon stood deployed to delegitimate the emergency regime 3 repeal ofthe fity-inth amendment. Ifthe language of -y also sustain the apparatuses of the Indian state. The slender social justice texts have been, y in the late seventios and eighties, deployed by a variety of elm and overrum the bulk of the the judicial powor om behalf of the dor Of the Constitution has boon converted into a struggle for con: cial power om bel of cathartic judicial populism, accenturates the j tution by developing « now and ingratiating human rights jurispridence 12, Seo, ag KS. Subramanian, Parliamentary Communion: Crsis in the Indien Commit Movement (1589). 191 ACCUMULATION AND LEGETIMACY 3 ‘cannot be pursued here? But by exposing the coexistence of the rule of law with the reign of terror in India, the judicial power assumes the role of a pedagogue im freedom and democracy and provides from the vantage point of the written Constitution a telling critique of the continued sub- version by the executive power. But somehow the social action litigation of the exposé of the state law cconomie growth. Primitive accumulation processes ial of rights to the unorganized labour classes, The Thus, we witnoss the wholesale denial of rights to landless and migrant labour at all the moments ofthe so-alled Green, Revolution and all themnajor ment registering the passing of the Indian sover international capital Deaths" in’ Mahendra P. Singh (ef), Conparoive Constitutional Law 248.989); Upendea Basi, The Crise ofthe Indlan Lega Syetem 12193 (1982),| | uw DELHI LAW REVIEW vou. 13 an occasional rather than 2 growing permanent feature of judicial discourse; f even remote tendencies towards activism are to be ‘igh Bench, Whether such punny processes of weilding: ‘reverse the counter hegemonic uses of the law and actors yet remains to be jon on the side of the rule ‘begun. Whetherit would sare on the possibilities of transformation of 2 which sntly constitution-blind in myriad ways. jmism of the intelleet" should, perhaps, be ruled by the NOTES AND COMMENTS MUSLIM WOMEN’S RIGHT TO DIVORCE— AN APPARENTLY MISUNDERSTOOD ASPECT OF ISLAMIC LAW IN INDIA INTRODUCTION all human affzirs recognises divorce, but only 8 a necessary in certain circumstances.® Since ifalibity i not aa toy, Musim jurists that the lay of divorce hat not exactly bom Just 10 the-Holy Prophet or the Holy ook. ‘5. “Ofall the permed things divorce ie the most abominable with God": Abu Dawid, ‘Swan; Kanpur I, p. 296 efed in KIN. Ahmed, The Muslin Law of Divorce 3 1978)