Law Day: A Day to Voice Our Opinions or a Day of Reflexive judgment?

This year’s Law Day is different from others as it has seen the “revolt of the judges” over the master of roster and collegium affairs and the fact that some leaders of the Bar, commentators on the Constitution and the media have been pointed to glaring lapses in judicial accountability. There is also a sense of doom and gloom about demosprudential judicial co-governance of the nation. How do we pledge ourselves anew to the ideals of the Constitution? Overcoming the mediocrity of understanding and establishing excellence is the call of the Constitution today. And this alone will lead to a new constitutional culture that will nourish its democratic future, writes UPENDRA BAXI.

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LAW Day is a significant institution in India. Lawpersons—justices and lawyers—and laypersons (academics, researchers, media lawyers and students) all celebrate this day in different ways. And the common rhetoric now emerging is one of triumphalism of the Constitution and the rule of law and the major roles that the Bar and the Bench have played in the shaping of modern India.

This year it should be no different. Since the so-called “revolt of the judges” over the master of roster and judicial collegium affairs where they also held an unusual press conference (on January 12, 2018), some leaders of the Bar, commentators on the Constitution and the media have been stridently pointing out glaring lapses in judicial accountability. What the accountability angels say is, of course, noteworthy; whether this represents the entire opinion of the Bar, the litigants or the general public remains a matter for urgently needed empirical studies. And also, whether this sense of doom and gloom about demosprudential judicial co-governance of the nation should furnish vast territories of thought and action. In this respect, this Law Day is unusual from others.

I wish to write on a related but different theme: namely, the task of thinking through the Constitution. Writing about the Constitution should at least be as difficult as writing the Constitution itself! We may not go so far as to agree with Jacques Lacan (named fondly as the second Sigmund Freud) who thought that an author owes an ethical obligation to be difficult. Or with Rupert Waldo Emerson who wrote in 1831 that it is “a luxury to be understood” and in 1841 asked: “What is the hardest task of all?” He answered his own question in two simple words: “To think.” Yet the Constitution of India asks us all to think seriously; and it is in this invitation for significance that its final meaning and message dwells.

Even if the Covid-19 context and conditions may not be conducive to contemplation, the demand is stark and simple: How do we pledge ourselves anew to the ideals and values of the Constitution and the democratic virtue of socially responsible criticism? Perhaps, we may do no better than start with understanding the complexity, contradiction, and chaos or the three Cs of the, overall, rolled-up Indian constitutionalism.

At the same time, we ought to recall the distinction between having an opinion–everyone’s democratic right—and having a considered judgment (which takes a long time of study and refection).

Is November 26 a day to voice our opinions or rather a day of reflexive judgment? Have We, the People, who gave unto themselves the gift of complex equality in a democratic sovereign, secular, and socialist republic moved efficiently towards this goal?

Even if the COVID-19 context and conditions may not be conducive to contemplation, the demand is stark and simple: How do we pledge ourselves anew to the ideals and values of the Constitution and the democratic virtue of socially responsible criticism? Perhaps, we may do no better than start with understanding the complexity, contradiction, and chaos or the three Cs of the, overall, rolled-up Indian constitutionalism.

The idea of equality and its complexity

I describe the idea of equality as complex because it asks us, in Pandit Jawaharlal Nehru’s words to the Constituent Assembly: “Dare not be so little.” The audacity of hope is the prescribed route to combat littleness, hope that goes against the grain of past history, courage of new convictions, of thinking big and having extraordinary hopes and aspirations for daring visions of a constitutionally desired India.

From the start, the Constitution of India was a vehicle of complex equality. It was, on the one side, almost a consummation of western liberal ideas of equality and equal opportunity before the law. On the other side was the uniquely unjust practices of discrimination against untouchables, practices of bonded labour, agrestic serfdom as well as unconscionable labour practices that engulf Dalit-Bahujan and indigenous peoples and societies, and deep-rooted discrimination against women, sexual minorities, children and people braving disability.

In a bold move, the Constitution embraced both the liberal and post-liberal visions of equality. The Fundamental Duties of Citizens (Part IV-A of the Constitution) continues that tradition of not being little. How do we think big, bold and beautiful is the challenge that the Constitution poses to us all.

Article 51-A casts a duty on each citizen and asks us to “promote harmony and a spirit of common brotherhood, amongst all the people of India transcending religious, linguistic and regional or sectional diversities”, to renounce practices derogatory to dignity of women, and to “strive towards excellence in all spheres of life so that the nation constantly rises to higher levels of endeavour and achievement”. To dare to be little is to be a sub-constitutional subject of law and policy; the Constitution directs us to develop the virtue of excellence that is antagonistic to sheer mediocrity in public and private life, and accordingly to “develop the scientific temper, humanism, and the spirit of inquiry and reform”.

These duties are addressed to all citizens, be they the rulers or the ruled, human beings or corporations. How long shall we neglect these in making law and public policy and in our conduct and imagination as individual self-governing citizens? It is well to remember good old Aristotle who described citizens as those beings who knew how to rule and how to be ruled.

From the start, the Constitution of India was a vehicle of complex equality. It was, on the one side, almost a consummation of western liberal ideas of equality and equal opportunity before the law. On the other side was the uniquely unjust practices of discrimination against untouchables, practices of bonded labour, agrestic serfdom as well as unconscionable labour practices that engulf Dalit-Bahujan and indigenous peoples and societies, and deep-rooted discrimination against women, sexual minorities, children and people braving disability.

Entering a life of contradictions

Dr. B.R. Ambedkar, while introducing the heroic text of the Constitution, alerted an incipient nation that we “enter a life of contradictions” on January 26, 1950. The contradiction he foregrounded was a materialist one: on the political side, a radical equality of one person, one vote, and a constantly radical economic inequality on the other. We may, in the light of experience, add some other contradictions such as civilisational, cultural, institutional and normative. I have found another way of thinking this vision of the Constitution as a contradictory unity of four core contradictions among the ideas of governance, development, rights and justice.

Governance and development occupy pride of place in the constitutional text; compared with these, the texts of justice and rights are slender, though for that or any other reason no less important.

Exuberantly, I have myself often said the Constitution is nothing but a massive footnote to the Preamble, the Fundamental Rights, the Directive Principles and now the Fundamental Duties of all citizens. One may have different names for it–such as “antinomies” or “tension”– but to think about contradictions is to think about difference and change, the ways in which these changes may be perceived as good or bad, as hostile or friendly, to development (or de-development) as perceived as vikas (development) or vinash (destruction). But neither is dissent sedition nor difference anti-national; rather, deep-seated contractions are a gift of social thought and action. And even as we think that we have “handled” or “settled” “old” contradictions, these re-emerge, albeit in new forms.

How the Indian Constitution embodies these contradictions and the ways in which constitutional development handles or fosters their articulation matters a great deal. But the consensus view of state formation and constitutional development has greatly limited our capacity to understand contradictions, conflict and change.

Chaosmos, a kind of “disordered order”

Originating in a mathematical theory, chaos theory rested on a simple looking proposition of “orderly disorder created by simple processes”. In art theory, it is more commonly known as Chaosmos– a kind of “disordered order”, a

“lawless order”, chaos in and that is also, cosmos. Social theory also discourages the pejorative use of the term by studying the multi-linear complexity of social systems. The contradiction is not here between order and disorder but rather illustrates a complex notion of a stable order lying underneath the disorder of disparate things or themes.

The Constitution directs us to develop the virtue of excellence that is antagonistic to sheer mediocrity in public and private life, and accordingly to “develop the scientific temper, humanism, and the spirit of inquiry and reform”.

What is that stable order animating the chaos of multi-linear system that we term the constitutional system? This has been, and is now too, a sovereign question in reading the Constitution; it is complex and contradictory because different constitutional sub-systems have their master values and agenda of concerns. And these conflict among themselves. Examples abound. The crime control model of the police rests on a jurisdiction of suspicion, whereas the adjudicative law is based on the presumption of innocence. Administrative agencies favour a decision that is fair as being quick and effective; judicial actors articulate a will to due process in administrative action. Political actors believe in parliamentary sovereignty, whereas the Supreme Court of India has developed the doctrine of essential features and the basic structure imposing implied limitations. It is pointless to provide more illustrations. But the overall architecture of the Constitution serves to institutionalise conflict of interpretations.

I do not refer here to a wider conflict of interpretation of the Constitution that occurs among non-state actors, institutions, and networks, and other hegemonic actors such as corporate enterprises and affiliated entities, the mass media empires. I am primarily concerned with the groups of constitutional have-nots who do their best, under difficult circumstances, to fight for the rights they have under the constitution but also (in Hannah Arendt’s favourite words) claim “the right to have rights”.

It is out of these culturally rooted contradictions that discords arise among the conceptions of governance and development on the one side and rights and justice on the other. The fundamental duty to overcome the mediocrity of understanding and establishing excellence is the call of the Constitution today. And this alone will lead to a new constitutional culture that will nourish its democratic future. For, nothing is more inimical to constitutional democracy than the illiteracy of those who claim to be literate.

(Upendra Baxi is Emeritus Professor of Law at the University of Warwick and Research Professor of Law and Distinguished Scholar in Public Law and Jurisprudence at the Jindal Global Law School, OP Jindal Global University. Views are personal.)

The article was originally published in The Leaflet.