Putting Politics Ahead of Institutional Critique

Ed Note We are hosting an international blog symposium on India and Global Decline in Democracies as a part of our New Scholarship initiative. We will be discussing Professor Tarunabh Khaitan’s article, which he introduced here. More information on the symposium can be found here. This post is the fifth response in the series, by Professor Mark Tushnet

I use Tarunabh Khaitan’s illuminating article on recent constitutional developments in India to raise some questions about how scholars are analyzing constitutional retrogression or deconsolidation, and to suggest a different and in my view better approach. Khaitan’s article exemplifies a common approach, which takes the constitutional developments as worrisome in themselves (at least in the aggregate), independent of the political content of the programs simultaneously being advanced by those who propose or implement the constitutional changes. My suggestion is that the analysis should be flipped: The constitutional developments are worrisome because they are in service of problematic political agendas.

My suggestion is motivated by this observation: Most of what we’re seeing today aren’t constitutional changes made for the sole purpose of aggrandizing the personal power (or income, both monetary and psychic, of political leaders). Instead, politicians promote constitutional changes so that they can more easily implement their political agendas. They seek to control fourth-branch institutions because those institutions are impeding their ability to push their agendas forward – either by completely blocking them or by enhancing the power of political opponents, including opponents in civil society. They are, so to speak, pushing down veto gates in the existing constitutional system.

But, as a general matter, there’s no reason to think that the number of veto gates present at any particular time is optimal in terms of good governance – at least if we think that social, economic, demographic, and technological change can (sometimes) overcome Burkean arguments favoring the status quo.

So, for example, if you thought that your country needed a quite substantial program of economic reconstruction to advance the interests of the least well off, and you thought that the constitutional court had been captured by politically conservative forces because of a combination of a conservative legal culture and mechanisms of appointment that systematically skewed the court’s membership in a conservative direction, you might well want to weaken the court’s power by changing appointment methods, packing the court, or limiting its jurisdiction. And, I believe, that’s how political parties like the BJP see the constitutional system they are operating in – though of course their political agenda is different.

(I note that there’s a reasonably well-developed academic account of constitutional review cast in precisely these terms. Ran Hirschl’s account of how constitutional review was strengthened as an act of “hegemonic self preservation” in several nations has precisely this form: Political elites anticipating a loss of their power in the political branches retreated to the courts, where they hoped they could block the changes they saw coming.)

That’s the general argument. How does it apply to India? I’ll start with Khaitan’s metaphor of death by a “thousand cuts.” And I’ll put to one side obviously problematic actions such as patently unfounded sedition charges. My focus is on a few of Khaitan’s examples, where what he calls a “managerial rhetoric of efficiency and good government” was deployed. Divorced from the BJP’s political agenda, these constitutional developments might indeed improve governance. Or, to use the guiding metaphor, maybe (again, divorced from their political context), these changes aren’t “cuts” at all.

The most obvious, I think, is the failed attempt to replace the “collegium” system for judicial appointments with a judicial appointment commission that was (perhaps barely) within international norms for the judicial appointment process. The collegium system is almost indefensible as a matter of basic constitutional theory (and has no more than a handful of parallels elsewhere in the world), because it provides no mechanism of even indirect political accountability for such appointments. That the system is constitutionally problematic is suggested by the fact that the constitutional amendment changing the system had the full support of the political opposition (as Khaitan notes).

Of course there might be India-specific reasons for objecting to the new judicial appointments commission. It would have been smaller than most such commissions, and the executive’s role would have been a bit larger than is common elsewhere. And those features might have made it badly designed – though as an outsider I have to note that it’s hard to see how it could have been as bad, from a design perspective, as the collegium system.

A second example is the proposal to consolidate national and other elections. This is a common “good government” suggestion. Not only does it ordinarily save money, but – particularly in multiparty systems, including those with regional parties – it makes it easier to develop a coherent set of national policies. And, of course, that’s what worries Khaitan. Yet, once again, this concern is parasitic upon the political agenda that will become easier to implement – unless, as I’ve noted, one thinks that the status quo set of substantive policies is basically just fine. Here too there might be India-specific reasons to oppose consolidating elections, as the Election Commission’s opposition suggest (though on its face the argument that administering a larger set of elections once would be more difficult than administering a smaller set several times isn’t compelling).

I don’t know enough about India to expand the list of developments that might not be cuts at all, when considered independent of the BJP’s political agenda. I have a vague sense that exercises of the powers of centrally appointed governors and lieutenant governors might fall into that category. And I suspect that attacks by media entities that support the government (but aren’t formally affiliated with it) probably shouldn’t be counted as cuts either, but rather as part of ordinary nonconstitutional politics.

Finally, on the metaphor: Death occurs from a thousand cuts when the blood loss is too great. But cuts usually heal given enough time. And I don’t think that enough time has passed for us to be confident that some or all of the cuts Khaitan identifies won’t heal, perhaps leaving a scab or a scar but not killing constitutional democracy. Political actors of course can – and often should – warn us about what might happen, and tell us, “Don’t let them do any more of that! One or two more cuts and constitutional democracy will indeed die!” And that’s how I read Khaitan’s article: as a political intervention.

Put another way, Khaitan’s article brings the politics of scholarship to the surface. In my view that’s all to the good: The idea that scholarship about constitutionalism can be politically neutral is an illusion. Its politics is either explicitly or implicitly moderately centrist – even when written by scholars who affiliate themselves politically with movements on the radical right or left.

I conclude with some thoughts about constitutional scholarship seen as political, and for that reason subject to strategic reasoning. I have argued that Khaitan’s explicit argument is: “The BJP’s constitutional moves threaten the survival of constitutional democracy, and are wrong for that reason, independent of the BJP’s political agenda.” I have argued that his implicit argument is: “The BJP’s political agenda is deeply wrong, and its constitutional moves are bad because they’ll make it easier for the BJP to implement its program.”

It might make strategic sense in the Indian context to make the former but not the latter argument, taking the position for example that there are people “in the middle” who aren’t sure that the BJP’s agenda is deeply wrong but have some sense that constitutional arrangements should be independent of narrow political agendas. They might be wrong on the first count, and certainly are wrong on the second, but to gain their political support one might have to take them as they are, warts and all.

This sort of strategic reasoning is common among left-leaning scholars in the United States, and I think it’s seriously mistaken there. I don’t know enough about the contours of Indian politics to be able to assess its value in India. But I end with the observation that it might be a mistake to infuse scholarly arguments with strategic political judgments even implicitly.

Professor Mark Tushnet
Professor Mark Tushnet is a William Nelson Cromwell Professor of Law, Emeritus at Harvard Law School. He specializes in constitutional law and theory, including comparative constitutional law. His research includes studies of constitutional review in the United States and around the world, and the creation of other “institutions for protecting constitutional democracy.
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