An Imperial Constitution?: Justice as Equity and the Making of the Indian Constitution

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1 University Press Scholarship Online You are looking at 1-10 of 47 items for: keywords : Indian constitution An Imperial Constitution?: Justice as Equity and the Making of the Indian Constitution Mithi Mukherjee in India in the Shadows of Empire: A Legal and Political History ( ) Published in print: 2009 Published Online: ISBN: eisbn: acprof:oso/ The Indian Constituent Assembly met between December 1946 and December 1949 in New Delhi to draft a constitution that was finally adopted on 26 January What one sees in the Indian Constitution is the ultimate triumph of the juridico-epistemological framework of empire, grounded in the discourse of imperial justice as equity with its accompanying figure of the monarch as judge. It was in the Constitution that one can see the mutation of imperial justice as equity from a critical category of anticolonialism to the sovereign legislative category of Indian politics and the final marginalization in the post-independence political formation of the Gandhian discourse of transcendental freedom under which the struggle for independence had been largely carried out. However, it is argued that even as the Gandhian discourse of transcendental freedom came to be marginalized, its legacy survived in the form of an unqualified recognition of universal adult franchise in the Indian Constitution. The Constitution of India: Popular Sovereignty and Democratic Item type: book acprof:oso/ The relationship between constitutionalism and popular sovereignty in the Indian context is the critical focus of this original work in political theory, jurisprudence, and constitutionalism. This book examines fundamental issues about the basic law of the land. The author Page 1 of 6

2 contends that it is necessary to go beyond viewing democracy merely as the vesting of fundamental authority in institutions of elected representatives. It examines the founding of the Indian constitution and the emergence of its text in the background of the ideas of leading constitutional law theorists, such as Habermas and Ackerman. The author suggests that the constitution can be more meaningfully understood by adopting a more complex concept of democracy one that is able to distinguish between popular sovereign power in the hands of the people themselves, and in those of their agents in government. She establishes that underlying the bedrock doctrine of the basic structure of the constitution are fundamental questions about the relationship between constitutionalism and popular sovereignty. The text is a conscious effort to institutionalize the country's revolutionary experience during its anticolonial struggle. Constitutional Borrowing in South Asia: India, Sri Lanka, and Secular Constitutional Identity Sunil Khilnani, Vikram Raghavan, and Arun K. Thiruvengadam in Comparative Constitutionalism in South Asia Published in print: 2012 Published Online: January 2013 ISBN: eisbn: acprof:oso/ This chapter considers the associations between the courts of India and Sri Lanka as an example of constitutional comparisons and crossconnections within the South Asian region itself. More specifically, the chapter discusses Indian constitutional law as a possible source for judicial borrowing and outcomes in Sri Lanka. The author outlines doubts about the transferability of ideas from one culture to another, an idea which has found a contemporary echo in an increasingly voluble debate over the judicial application of foreign sources in constitutional adjudication. The centrepiece of the analysis is Sri Lankan Supreme Court's judgment in a landmark case Sisters of Saint Francis of Menzingen in which the issue of secularism and religion was positioned at the intersection of several subjects critical to comparative constitutional reflections on India and Sri Lanka: basic structure, federalism, and popular sovereignty. The author concludes that, ultimately, borrowing results from a mix of motives opportunistic, self-reflective, and sometimes unreflective. Which one dominates may be less a function of judges themselves and more a function of the institutional balance between the executive and the judiciary. Page 2 of 6

3 Introduction in The Constitution of India: Popular Sovereignty and Democratic acprof:oso/ This introductory chapter begins with a discussion of the founding of the Indian constitution, arguing that a deeper look at the Indian founding can reveal that its identity was shaped by a prior period of prolonged popular engagement in resisting a colonial regime, and in considering the principles of future political organization. It then discusses debates on the relationship between constitutionalism and popular sovereignty; the framework used to examine the Indian founding and subsequent transformations to the constitutional text; and engagement with Indian constitutional scholarship. Redefining Popular Sovereignty in The Constitution of India: Popular Sovereignty and Democratic acprof:oso/ This chapter discusses the founders' decision to redefine popular sovereignty and adopt the liberal representative principle to create a Nehruvian statist political order. They recognized that civic privatism had to be tolerated to secure individual liberty. The constitution thus marks spheres of private liberties and allows citizens to pursue their interests without coercing them to engage in politics. It is up to each citizen to decide how much time and energy he would devote for exercise of his private interests and how much for acts of citizenship. Under conditions of normal politics, popular sovereignty could only exist in a proceduralized sense in Habermasian theory, where popular opinion and will formation in informal and voluntary public spheres could seek to influence the channels of legitimate law-making. Page 3 of 6

4 How to Do Comparative Constitutional Law in India: Naz Foundation, Same Sex Rights, and Dialogical Interpretation Sunil Khilnani, Vikram Raghavan, and Arun K. Thiruvengadam in Comparative Constitutionalism in South Asia Published in print: 2012 Published Online: January 2013 ISBN: eisbn: Page 4 of 6 acprof:oso/ This chapter attempts to answer the following questions: how should Indian courts do comparative constitutional law? What precise role should comparative materials play in the interpretation of the Indian Constitution? Is their use simply rhetorical? Is the citation of comparative materials a judicial attempt to assert India's membership in the family of liberal democracies? Is legal globalization the counterpart to economic globalization? Does the practice of cosmopolitan citation suggest that Indian constitutional adjudication is part of a trans-national conversation on the relationship between rights, democracy, courts and the rule of law that knows no jurisdictional boundaries? Is the Indian Constitution merely a legal means to implement rights that exist independently and apart from the Indian constitutional order? Or is comparative analysis entirely inappropriate to the interpretation of a document which has been seen as India's first real exercise of political self-determination? The author offers a provisional answer to these questions, by puzzling through the recent judgment of the Delhi High Court in Naz Foundation v. Union of India in which the court used comparative constitutional law in an big way. In doing so, the author engages in two debates which are the subject of the chapter: the role of comparative materials in constitutional interpretation, and to change how we situate India in the field of comparative constitutional law. The chapter provides a detailed discussion of dialogic interpretation as opposed to a universalist interpretations of constitutional law. The Citizenship Act, 1955: Liminal Citizenship at the Commencement of the Republic Anupama Roy in Mapping Citizenship in India Published in print: 2010 Published Online: ISBN: eisbn: acprof:oso/ This chapter explores the liminal spaces of citizenship that emerged in the interregnum between the enforcement of the Citizenship provisions

5 as contained in the Constitution of India and the enactment of the Citizenship Act of 1955 through a study of archival material, primarily files pertaining to citizenship in the Indian Citizenship section of the Home Ministry in the 1950s, citizenship laws, and court judgments. The chapter argues that: (1) in the interregnum between constitutional provisions (1950) and the Citizenship Act (1955), citizenship in India occupied a zone of liminality; (2) the liminality of citizenship accrued from the fact that the interregnum embodied the threshold space between the nation-state and state-formation/making; (3) the occupation of a liminal space attributed citizenship with indeterminacy and ambiguity; (4) registered/alien/pakistani women/wives, minors, and displaced persons were liminal categories, in the sense that they signified both the uncertainty of the moment of passage and the change in status that such passage was to bring with it; and (5) the liminal state of citizenship was fraught with contests over precise legal categories in the absence of/in anticipation of the Citizenship Act and was imbricated in processes of state-formation and issues of national belonging. The Indian Constitution: Strengths and Weaknesses Ramin Jahanbegloo in India Revisited: Conversations on Continuity and Change Published in print: 2008 Published Online: ISBN: eisbn: acprof:oso/ This interview of Soli Sorabji focuses on the strengths and weaknesses of the Indian Constitution. Looking at the different facets of the Constitution, it tries to assess the need for it to be rewritten. Soli Sorabji insists that the people, and not the institutions provided by the Constitution, are to be blamed for failing to achieve the basic aims of the Constitution. In the course of this interview, he also discusses the legal aspects of death penalty, homosexuality, public awareness, and the right to privacy. Another Kind of Revolution in The Constitution of India: Popular Sovereignty and Democratic acprof:oso/ Page 5 of 6

6 The preamble of the constitution of India claims authority for the founding in the name of We, the people of India. The Indian founders claimed the remarkable act of authority required to write these words as the culmination of their generation's revolutionary experience in mobilizing the people for opposing British rule, and to achieve selfgovernance. This chapter argues that capturing the centrality of this revolutionary experience in constitutional law means working out the relationship between popular sovereignty and constitutionalism within the framework that has been sketched for examining the Indian constitutional experience. The historical evolution of revolutionary consciousness and three primary modes of its expression are also considered. British Conventions and the Indian Constitution 1 A.G. Noorani in CONSTITUTIONAL QUESTIONS AND CITIZENS' RIGHTS: An Omnibus Comprising Constitutional Questions in India and Citizens' Rights, Judges and State Accountability Published in print: 2006 Published Online: ISBN: eisbn: acprof:oso/ The fact that the Indian Constitution is one of the most elaborate in the world does not imply that it does not have in addition tacit provisions. It is based on the recognized conventions of a parliamentary form of government which it establishes both at the Centre and in the States. For quite some time people, politicians, and others professed not to see anything but the written word, and rejected the conventions altogether. This chapter discusses how the Supreme Court has very clearly given legal recognition to constitutional conventions concerning the parliamentary system of government. In other words, the court has recognized that the provisions of the Constitution are based on certain British conventions regarding the cabinet and that to ignore the latter would be to misinterpret the former. Page 6 of 6