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People are protesting to remind govt of constitutional values: Rohit De, professor of history, Yale University

The protestors are saying that the Constitution protects many of our rights. The new laws seek to deviate from that. The institutions that are supposed to protect us — political parties, the judiciary — have not stepped in. So people are coming out to hold these values up and remind them that they can’t deviate from the basic structure of the Constitution, asserted Rohit De.

, ET Bureau|
Last Updated: Jan 26, 2020, 10.37 AM IST
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On the 70th anniversary of the Constitution, G Seetharaman talks to academics Rohit De and Madhav Khosla who have written about the making of the document and its early years to make sense of the importance of the Constitution and the role of the judiciary in upholding the fundamental principles of the country. De is an associate professor of history at Yale University, and Khosla is an associate professor of political science at Ashoka University and a visiting associate professor at Columbia Law School. Edited excerpts:

How unusual are the anti-CAA protests in that the Constitution has taken centre stage at many of them?

Rohit De: From the late 1920s, a number of groups — labourers, women, minorities and people representing princely states — grappled with and argued about constitutional ideas. They were all focussed on particular aspects and clauses. For example, writers mobilised for freedom of speech, Dalits agitated for affirmative action. But it wasn’t for a broad constitutional idea as a whole. There was one moment immediately during and after the Emergency where we saw an argument on constitutional processes. But that was led by political parties and elite lawyers. It didn’t come from the grassroots. The only thing the current protests could remind me of is the Declaration of Independence (in 1929). After the Congress adopted the Purna Swaraj resolution, crowds gathered at public places through the 1930s and recited the declaration and raised the (‘Swaraj’) flag. While these movements were party-led, it was also a sign that independence was not something we were going to be given, it was something we were going to take.

Madhav Khosla:
The Constitution acquiring this kind of place in public life isn’t necessarily a bad thing. There was no need for that earlier. One of the most interesting things about the Constitution is for the most part, it has managed to absorb a number of conflicts — other than the Naxalite movement — like caste… But the implicit thought now is the process is not working.

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(L)Rohit De, author of A People’s Constitution: The Everyday Life of Law in the Indian Republic. Madhav Khosla, author of India’s Founding Moment: The Constitution of a Most Surprising Democracy


How has the Constitution aged as a document undergirding the world’s largest democracy?

Khosla: Constitutionalism is as much a form of government as it is a set of practices. It is a commitment to resolving disagreements through certain means. It is an agreement to address claims and counterclaims through certain forms of argument and evidence. And in part, what the current movement brings out is that the state certainly does not seem to be conforming to those set of practices — and this is not just in respect to the laws it is passing. The detentions in Kashmir after the revocation of Article 370 is an example. I think people are coming out and saying, ‘you’re giving up on the practices. You better recover them or you are losing the argument why we shouldn’t give up on them, either’.

De: The protestors are saying that the Constitution protects many of our rights. The new laws seek to deviate from that. The institutions that are supposed to protect us — political parties, the judiciary — have not stepped in. So people are coming out to hold these values up and remind them that they can’t deviate from the basic structure of the Constitution.

What are your thoughts on the constitutionality of the revocation of Article 370 and passage of the CAA?

De: There are certain underlying principles in the Constitution. It preserved a certain amount of regional autonomy and it recognised that certain communities might need additional measures to enable them to achieve some standard of equality. And, broadly, most political parties seem to have been bought into this consensus. What we see today is a push towards a one-size-fitsall model and an erosion of diversity. In both these decisions, there was a lack of public consultation. Legislatures were not taken into confidence. This applies to other major decisions as well — whether it is demonetisation or the decision to revamp the centre of New Delhi. All these were taken by executive fiat because there is a majority in the Lok Sabha. Irrespective of substantive questions on their legality, it seems that a broad commitment to constitutional rule has been stepped away from. Even the judicial press conference three years ago was a recognition there has really been a deviation from ordinary constitutional norms.

Khosla: There is a substantive question about whether these moves are legal. I think they raise grave constitutional concerns. The bifurcation of J&K, Article 370 and the CAA — it is not just that these laws have been passed and they don’t have the strength of the Constitution behind them. They are not being adjudicated, assessed, heard and decided upon in a fair way. On all these laws, there are very good arguments on the other side, too. Personally, I don’t buy these arguments but there are good legal arguments to be made in any case. I think the institutions meant to check this system seem to be missing in action, the judiciary in particular.

How has the judiciary performed its role in upholding the Constitution?
De: When the Supreme Court was set up, it followed certain principles of transparency in deciding matters. What matters got heard first, and which judges were going to hear these cases and what is the process through which they were allocated cases were all scrupulously followed. Justice must not only be done, but it must also be seen to be done. One of the questions being raised now is it is not clear why the judiciary responds with urgency to certain things and not with the same urgency to other things. We don’t get reasoned statements for its orders. Our judiciary has a lot of power, respect and legitimacy. This was built up over the years by careful household management. This is what makes the current moment a little bit difficult.

Khosla:
The process the court is adopting at every stage does not give you confidence. The question is, what follows from that? The first thing is that increasingly, you don’t have a rule-of-law society. So even though you have a society where the court is very powerful, it is not clear the court is actually improving the rule of law. The second thing is, you are not giving the people a very good reason for obeying the authority of the court.

Are you referring to the delays in hearing petitions related to Article 370?

De: It is more fundamental. About electoral bonds, we now know the Election Commission and the RBI had questions about these. The matter has been pending for 2 years. The court allowed the Delhi elections to take place without looking into the legality of these bonds. Maybe three years from now, if the court says these bonds are unconstitutional, what does it mean for the funding that happened over these years? If there is a matter of urgent significance, the court needs to step in early and raise a red flag at least.

Khosla: In an earlier era, a judge would decide in favour of the government. The cases on the Emergency that Rohit (De) and I would read in law school are those the court decided in favour of the government. Now the new game in town is the court just doesn’t decide.

How do you see the increasing assertion by states in their relationship with the Centre in the context of the powers the Constitution gives the Union government?

Khosla: I don’t think the pushback will be legal. It has to be political. Whether it will happen or not is not clear. The absence of coordination with states is deeply concerning. The opposition is an uncoordinated and uninspiring body of people. Maybe that is a good thing. Maybe there is spontaneity in the protests.

De:
For the first time in years, we have a party with an overwhelming majority at the Centre. This is coupled with a new kind of cultural nationalism that marks out regions as different or un-Indian. Hence the kind of backlash Kerala Tourism faced when it advertised its beef dishes, or the vitriolic language used against Bengalis, or on Tamilians over what language to give central exams in. These are leading to a heightened sense of the need to assert federalism. With the recent conversations about the GST, it is increasingly clear that despite the promise of cooperative federalism, which this government was elected on, it is not coming to fruition.

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