Insulation, Judicial and Otherwise

1. In this piece in the Economic and Political Weekly, I analyze what I term (for lack of better terminology) the “democratic” and “political” insulation of India’s constitutional judiciary.

2. In this piece in the Economist, one reads of the insulation of Arunachal Pradesh, where you need an “inner line permit” for entry. There are tensions between cultural preservation and national integration, between Article 19(1)(d) and Article 29(1). Constitutionally speaking, the “marketplace of ideas” concern encapsulated in Article 19 is sometimes sacrificed for the preservation of some ideas, understood as linguistic and cultural identities. Under our constitution, the freedom to move freely throughout the territory of India is subject to “reasonable” restrictions in favor of the “general public” and “scheduled tribes”. Some cultures require insulation for preservation – in other words Article 19(1)(d) must be subordinated to Article 29(1). The question is, where does one draw the line: how do we distinguish the notorious linguistic chauvinist of Maharashtra from those wary of cultural dissipation in the north east? (Again, questions asked, but no answers offered)

Written by
Abhinav Chandrachud
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  • Some cultures require insulation for preservation – in other words Article 19(1)(d) must be subordinated to Article 29(1).

    Very problematic formulation. Who decides which cultures require "insulation"? Insulation from what? From the RSS as asserted by many "secularists" who complain about the "Hinduisation" of the "tribals"? Or from "aggressive Christian proselytization" as asserted by many in the Sangh parivar? How long is this "insulation" to last? Are we covering up our own self-interest in the garb of "insulation"?

    If one takes "insulation" seriously, then we (India) should give independence to all those we deem to be in need of protection and allow those groups to make their own decisions in this regard.

    Such policies originated under the British raj but at least the Raj was consistent in that it never considered such groups (and Indians, more generally) to be the equals of Britishers. With people dubbed "inferior", there is a case for adopting a paternalistic attitude, or what Kipling called colourfully, the "White Man's burden."

    But, we in India – at least formally – think of the Arunachalis, the Mizos etc. as equal citizens of India. Then what is the logic for the paternalistic attitude? I can't think of any way of justifying it.

  • In response to the question re the clash between Article 29(1) and Article 19 – it is a valid contradiction, and I would argue that it is not a question that can be resolved within the framework of liberal law.
    Arguably the fundamental difference between the two situations relates not to either the cultural or property rights of the communities in question but rather,
    to use Marxist phraseology as a shorthand, the relations of production in these areas. In Arunachal Pradesh, Meghalaya, Nagaland, Mizoram and the hill areas of Tripura and Manipur, the predominant system of production
    is collective in nature – expressed most clearly through the manner in which land is allocated for Jhum (shifting cultivation),
    in which the village assembly (or the headman as the instrument of it) rotationally allots land to families depending on
    their needs (and families with large numbers of dependents are supported by others). In other tribal areas of the rest of
    the country, most of which no longer practice shifting cultivation, similar systems of collective production survive
    with respect to forest produce, grazing areas, water bodies, etc.

    The "collective" in these areas thus has a very concrete material existence that the entry of outsiders – and, in fact,
    any kind of private property claim – would disrupt. In law and public discourse this is the reality that is reflected by broad (and inaccurate)
    tenets like the "connection of tribals to the land." This is not the case in Maharashtra, where the collective sought
    to be imagined is based not on common production but in fact on *overriding* existing class differences and in that sense is "populist" in the negative sense.
    Hence it requires the projection of the "Other" as its central tenet, in contrast to those in the northeast. This is not to exclude
    the possibility and reality of the latter also being a part of chauvinistic politics, though the nature of this politics
    remains fundamentally different from that of the Raj Thackerays (in political if not in moral terms).

    But liberal rights based law is founded on the premise of classically capitalist forms of production, and
    cannot as such conceive of socieites where its triple foundation of individual autonomy, private property and
    an autonomous state is only partially applicable. Hence the patchwork quilt manner in which the reality of collective production has been incorporated
    into Indian law, through the Fifth and Sixth Schedules, the Forest Rights Act, etc., and the continual violation of these
    provisions. These issues are forced into being articulated as "rights", a narrow and incomplete frame for much larger

  • Sir,

    I feel there is one more dimension to "democratic" insulation.

    Our Constitution is "democratic" in nature. Every branch is obliged to participate in its interpretation. But, in our country, judiciary has become the sole and final interpreter. This interpretative monopoly has led to a different sense of insulation (A same kind of argument has been analysed in the American context by Neal Devins and Louis Fisher in "The Democratic Constitution").