26th January 2016 Vineeth Krishna E, Centre for Law and Policy Research

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Report on ‘Constituent Assembly Debates in Contemporary Times’

26th January 2016

  • Vineeth Krishna E, Centre for Law and Policy Research

On 26th January 2016 - India’s 67th Republic day, the Centre for Law and Policy Research launched its CADIndia website – cadindia.clpr.org.in. The website is specially designed to allow lawyers, judges, students and lay persons to navigate through the Constituent Assembly Debates (CAD) in an easy, systematic and productive manner. The launch event also included a discussion around ‘Constituent Assembly Debates in Contemporary times’. The speakers on the panel were – Justice N. Kumar, Judge, High Court of Karnataka; Justice Raghvendra Chauhan, Judge, High Court of Karnataka; Prof. Arun Thiruvengadam (moderator), Azim Premji University and Prof. Sudhir Krishnaswamy, Azim Premji University and Co-Founder, Centre for Law and Policy Research. Below is a detailed report on the discussion that took place:

Justice Kumar in his talk presented a detailed picture of the constitution-making process that took place between 1946 and 1950. It is often forgotten that constitution-making in India was not merely the outcome of the debates in the Constituent Assembly. A lot of the groundwork was done in the various subcommittees, often anchored and spearheaded by civil servants like B.N.Rau who were not members of the Assembly. The larger point that J. Kumar invoked in his talk was the question of individual contribution. He pointed out that the Indian Constitution is not the result of the work of one individual. He seemed to be uncomfortable with the prevailing notion of Ambedkar being the author of the Constitution and invoked other important members of the Assembly and mentioned that Ambedkar himself gave credit to these members. J. Kumar’s warning against hero-worship, made by Ambedkar himself, is one that is relevant to contemporary times.

J. Chauhan began his remarks by further augmenting the historical background of the Indian Constitution that J. Kumar provided. He presented the American constitution-making process and made several insightful comments on the same. He carefully traced the initial years of constitution-making in America and focussed on how the ‘fathers’ of the American Constitution dealt with the problem of getting various colonies under the ambit of the Union. The Federalist Papers which played a crucial role in this endeavour, according to J. Chauhan, are the American equivalent of India’s Constituent Assembly Debates, as they touched upon all aspects of a constitutional government.

After completing his sorties into comparative constitutional history, J. Chauhan moved on to the issue of constitutional interpretation and emphasised its importance to political and constitutional future of a country. He brought up the example of Pakistan and suggested that the initial troubles that Pakistan had with passing a democratic constitution could be traced to an interpretation (doctrine of pleasure) made by the Pakistani Supreme Court in a case which allowed the Constituent Assembly of Pakistan to be dissolved by the Governor General. J. Chauhan then moved on to the examining the two dominant theories of constitutional interpretation – originalism and non-originalism.

In situations of constitutional ambiguity, originalism calls for the recovery of original meaning, original intent or other aspects of constitutional history behind a problematic provision in the Constitution. This excavation exercise, originalists argue, must play the primary role in informing the interpretation of the problematic provision. Non-originalism does not call for any reverting back to constitutional history for clarifying an ambiguous constitutional predicament.

Clearly, the Constituent Assembly Debates would have more salience in the realm of originalism than in non-originalism. In this regard, the important questions to ask about the relevance to CAD to contemporary times are: a) What has been the career of originalism in India and to what extent has the Supreme Court used the CADs in constitutional interpretation b) Is originalism through the use of CADs, an ideal model for constitutional interpretation and a panacea for the Supreme Court of India in resolving ‘hard’ constitutional law cases? And lastly, c) Do the CADs and their importance have relevance to only constitutional interpretation and to the legal community at large?

The above questions are the ones that both J. Chauhan and Prof. Sudhir Krishnaswamy navigated through and touched upon in their remarks.

J. Chauhan invoked a series of cases, beginning with State Of Travancore-Cochin ... vs The Bombay Co. Ltd., where the Supreme Court opined that speeches made in the Constituent Assembly cannot be used in interpretation and that the exclusionary rule (the discarding any legislative or constitutional history) must be applied. From this starting point, J. Chauhan took the audience through important and landmark judgements - A.K Gopalan, Golaknath, Kesavananda Bharati etc.- and mentioned that the Supreme Court seemed to have discarded the exclusionary rule and slowly began to change its disposition towards using of CADs. He argued that in India, unlike America, both originalism and non-originalism seemed to have informed the Supreme Court’s interpretive functions. He warned against the tendency of using the CAD as a solution for every ticklish constitutional issue.

Pointing out that the CAD seems to become the sole intellectual monopoly of the legal community, J. Chauhan called for scholars of non-legal disciplines to study the CAD as a means of better understanding the moment of constitution making within the larger historical, social and political context of the country. J. Chauhan would find it encouraging that scholars of non-legal disciplines have now begun to engage with the CAD seriously – Rochana Bajpai’s Debating Difference, Niraja Jayal’s Citizenship and its discontents and Mithi Mukherjee’s India in the Shadows of Empire, are a few noteworthy examples.

Arun Thiruvengadam, in his moderator remarks, made two very useful interventions regarding Chauhan’s remarks on comparative constitutional history. Arun reminded the audience that while there is a similarity between the CAD and the Federalist Papers, one must ultimately not forget that the two were also fundamentally different in certain ways. While the federalist papers were largely propaganda materials, the CAD represents a rigorous deliberative process. Arun also pointed out that while the American Constitution had only ‘fathers’, the Indian Constitution had the privilege of having ‘Mothers’. He invoked the example of Hansa Mehta who was simultaneously a member of the Constituent Assembly and also a member of UN committee crafting the Universal Declaration of Human Rights. Hansa Mehta, Arun argued, had influenced the debates around the fundamental rights chapter of the Indian Constitution significantly.

Narendra Modi on the 27th of November 2015 referred to the Constitution as India’s ‘holy book’ in Parliament. Sudhir Krishnaswamy began his talk by saying that if this statement is inserted into the context of constitutional interpretation, consecrating the Constitution as a ‘holy book’ clearly falls under the ambit of originalism. Sudhir was critical of the ‘holy book’ tag for the Constitution and also of originalism as being an ideal theory of constitutional interpretation. He agreed to J. Chauhan’s advice of judicious and nuanced use of the CAD in constitutional interpretation. Sudhir argued that our allegiance to the Constitution must be based on the fact that the constitution is a ‘political settlement that is meant to be enduring’. Any allegiance that is based upon putting the constitution on a pedestal will lead to what he refers to as an ‘originialist trap’.

Sudhir put forth an analytical framework to understand and appreciate the CAD to further elaborate on ‘originalist traps’. The constitutional choices made by the Assembly can be categorised into three forms – settlement, deferral and silence.

‘Settlement’ refers to those choices made by the Assembly where the constitutional text is clear and there exist very little scope for ambiguity. Article 58 which provides for the President to be at least 35 years of age is an example of ‘settlement’. A literal interpretation is usually sufficient in for these types of provisions.

The second type of constitutional choice- ‘deferral’ -refers to those provisions of the Constitution, where the Assembly defers a constitutional question by adopting guiding general and vague phrases as in the constitutional text. Added to this, Sudhir argues that the Assembly also indicates which institution is supposed to decide the meaning of the text. So the vague and ambiguous restrictive clauses in the fundamental rights chapter are to be interpreted by the judiciary alone whereas the directive principles are the domain of the legislature.

The third type of constitutional choice- silence -refers those issues which did not find their place in the discussions of the Constituent Assembly or issues which don’t reflect in the final text of the Constitution. Rights of sexual minorities are one such example.

Before I go into the connection that Sudhir makes between originalism and his framework, it might useful to reflect on the framework itself. The first problem that I have with Sudhir’s framework is the problem of the agency of the Constituent Assembly. If I understood him correctly, Sudhir seems to treat every instance of vagueness or ambiguity of constitutional text as a moment where the Constituent Assembly consciously wanted to ‘defer’ a particular tricky constitutional question. Apart from certain provisions in the Directive Principles, it is far from clear if we can say that ‘deferral’ was the primary intention of the assembly in keeping text ambiguous and vague. Secondly, Sudhir seems to discount the possibility of vague and ambiguous constitutional text being the result of (retrospectively) faulty drafting, unreflective thinking or any other ‘mistakes’ on the part of the Assembly.

Nonetheless, Sudhir’s framework of thinking about constitutional choices is important and useful. Clearly, as he mentioned, originalism has not much use for the ‘settlement’ and ‘silence’ variety of choices. In the case of ‘deferral’, originalism does play a significant role. But Sudhir is quick to point out that engagement with the CAD in the context of ‘deferral’ will not satisfy the originalist fantasies of obtaining clear-cut answers to constitutional issues. Using the examples of the beef ban and the NJAC judgements, Sudhir showed how the debates around these issues in the Constituent Assembly do not provide easy answers to contemporary problems around questions of cow slaughter and judicial appointments. Instead, he argues, that the CAD helps us in understanding the various ‘reasons’ put forth in the Constituent Assembly and that understanding the form, substance and modes of articulation of these ‘reasons’ are of immense educative value and can enrich public debates.

While acknowledging that the CAD can and does play a significant role in certain cases involving constitutional interpretation, all members of the panel, argued for an engagement with CAD more broadly, outside of the legal realm. Rochana Bajpai in her book Debating Difference, argues convincingly that political rhetoric in the Constituent Assembly played a crucial role in the adoption of various provisions of the Constitution. She goes further to argue more generally, that political rhetoric and other forms of discourse in the public sphere around various contentious issues, lead to specific political outcomes even in present times.

If the relationship between political outcomes and public discourse is taken seriously, then public discourse becomes far more crucial in the political and social development of the country, than previously envisaged. In such a context, the CAD plays an important role and is a crucial resource which can inform public debates about contemporary issues. Understanding the ‘reasons’ put forth by various members of the Assembly around issues of cow slaughter and the judicial appointments can inform our attempts at tackling the same issues today.

At Centre for Law and Policy Research, our Constitutional and Civic Citizenship Project is primarily motivated by our firm belief that engaging with India’s constitutional history can create rigorous forms of civic citizenship. Citizens who engage with India’s constitutional history, of which the CAD is one strand, will be able to draw from and deploy an advanced vocabulary of political reasoning which can ultimately move the country forward by creating productive forms of public discourse. By doing this, citizens will be in effect continuing the project of social transformation, which was first taken up the Constituent Assembly in the late 1940s. In this respect, the launch of CADIndia website and the subsequent discussion on the ‘Constituent Assembly Debates in Contemporary times’ seems to have been a step in the right direction.

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