LAOT Podcasts : #Episode 4 –On Constitutional Resilience and more with Prof. Tarunabh Khaitan

Summary: In this episode, our Editors-in-Chief Archita and Eeshan and legal editor Jeetendra are in conversation with Prof. Tarunabh Khaitan discussing his latest anthology “Constitutional Resilience in South Asia”. We explore the concept of resilience, especially in India, revisiting the “cuts” imposed on the Indian Constitution since Tarunabh’s seminal paper featured in the volume, “Killing the Constitution with a Thousand cuts”, and the role of the Indian Supreme Court in all of this. Tune in now!

Archita: Hello everyone and welcome to the Law and Other Things (“LAOT”) podcast series. With the new term, we are excited to bring you the latest insights on constitutional and public law. With us today is Professor Tarunabh Khaitan, who needs no introduction to our readers and listeners. He is the Professor (Chair) of Public Law at the LSE Law School and an Honorary Professorial Fellow at Melbourne Law School. Additionally, he was the founding journal editor at Indian Law Review. Previously, he has been the Head of Research at the Bonavero Institute of Human Rights, and the Professor of Public Law and Legal Theory at the University of Oxford.Tarunabh has been a longstanding supporter of LAOT and a mentor to all of us. In this episode, we are here to discuss the latest anthology that he hasco-edited along with Professor Swati Jhaveri and Professor Dinesha Samararatne titled “Constitutional Resilience in South Asia”. We are so grateful to have you here with us today Tarunabh.

Archita: The introduction of this anthology does a very good job in describing the goal of the work and the key concept of resilience that the book deals with. In the introduction, you mentioned that you’ve chosen “resilience” in opposition to other frameworks such as “decline”, in terms of what the book deals with. Could you talk a little bit more about what Constitutional resilience means in this book and why you chose it over these other frameworks that were available?

Tarunabh: Sure, thanks very much, Archita. We, as scholars of constitutional law, have been discussing democratic deconsolidation for about a decade now. And it’s, as you know, a phenomenon extremely common to some of the larger, older democracies around the world. I still remember going to comparative constitutional law conferences, even 12 years ago, where you’d be lucky to find a panel or two on the sidelines on democracy. Rights were the talk of the town, everybody only discussed rights. And then that completely changed, sadly, only when it became an American issue, but that’s what the reality of our field is. We chose to talk about resilience because one should have a positive tone to the book, which is not just how democracies are destroyed, but how they can survive, spring back, and fight back. So that was part of the motivation for thinking about resilience, but also because that is where we felt the scholarly gap was because when we started the project, there had already been a lot of scholarship on the mechanisms of decline or on the potential causes of democratic deconsolidation, etc. But there wasn’t then much literature on how democracies can fight back and survive. So that was the motivation. Now, there are many more scholars who had the same thought and the resilience literature is also growing. The book obviously took some time to come about as edited collections, too. So that was the main motivation to think about the strengths of the system. And also, perhaps, as you would notice, in the book, we don’t have an editorial line on what resilience means. So, we were interested genuinely in figuring out from our authors, what are the different ways of thinking about resilience, what are the different pockets of resilience, or even whether it’s an impossibility.

Archita: Another very interesting gap that this anthology tries to fill, is an approach to comparative studies where instead of using a face-to-face comparison, there is a proto-comparative approach used, more focused on single jurisdictions rather than putting them against each other. The book in that sense, is organized more in terms of institutions, like the judiciary, and the military, rather than geographical units, per se. And one interesting thing that we did notice going through it is that you talk about how, when selecting the works, and the authors for the anthology, you didn’t really focus on their identity or which jurisdiction they came from, in terms of whether they were writing about the same. Could you let us know a little bit more about why you chose that approach rather than giving more paramount to the identity itself?

Tarunabh: Thanks very much for the question, Archita. The book resulted in the second or the third of a series of South Asian public law workshops that I have been organizing over the last decade with a few colleagues every two or three years. And this iteration was in Melbourne in 2019. The point of the workshops was to fill a gap in the South Asian scholarly field where you don’t have institutional spaces for early career scholars to get robust, but constructive feedback on work in progress. So that was the idea that we wanted to fill that gap by providing workshopping space. We will not fill that gap, because South Asia is a huge place, and one workshop every three years cannot do that, but maybe, you know, role model the possibilities of and the importance of workshopping spaces for work in progress. So, that was the idea. From the very first iteration in Delhi, we were very clear that we did not want this to become yet another forum for inviting our friends to talk about our ideas. So, we from the very start adopted a mechanism of open public invitation and a robust and demanding selection process to call for papers from authors that we may not have heard of. And we weren’t entirely vindicated in that process. There were some learnings along the way. So, in the first workshop, we selected the papers based on abstracts and we realized that it was a mistake, because it’s easier to write a good abstract and that did not necessarily translate into a good paper. From the second workshop onwards, we shortlisted based on abstracts, but required half a paper around 5000 words, to make it to the final selection. And that really stood out, we discovered lots of good talent. Some of these people who have participated in the workshops have gone on to become great scholars, or at least great scholar in the making. That’s about the process that that we adopted, it was very much geared toward early career scholars.

On the other two issues that you flagged. The first workshop was about Indian public law, it was in Delhi. That is where, by the way, the idea of the Indian Law Review emerged from, where we’re in one of our navel-gazing sessions on the state of Indian scholarship, one of the participants quite eloquently talked about how sending manuscripts to Indian law reviews is a graveyard of academic publishing, and we realized the felt need for a world-class, peer-reviewed scholarly journal. And that’s what Indian Law Review became. When we decided to expand to South Asia more generally, that is when we also wanted to move beyond the Indian hegemony within the region. And I started by talking about the influence of American obsessions on the field. But India is a Little America within the region because of capacity, geopolitics, and all sorts of issues. Smaller jurisdictions do struggle to have a say and so we were very keen that this volume should genuinely feature at least one paper from every jurisdiction in South Asia. So, we were mindful of identity, or at least we weren’t completely indifferent to it. And, I think we did not achieve our agenda because Myanmar is missing. Despite our best efforts, we could not get a paper on Myanmar. But it is the most comprehensive coverage of South Asia because every other jurisdiction, including Afghanistan, Maldives, Bhutan, jurisdictions that don’t feature in any South Asian collection, do have dedicated chapters on them, and very good ones, too. So, I definitely see that as an achievement of the volume.

And the third thing you flagged was proto-comparativism. This is not a comparative volume. This is what we decided to call a proto-comparative volume. And we opted for that terminology because it is not comparative. I think there’s only one chapter that actually looks at an issue across jurisdictions in South Asia. It’s Micheal Pal’s chapter that looks at Election Commissions across South Asia. But other than that, all the other chapters are focused on particular jurisdictions all around just theoretical orientation entirely. So, it wasn’t a comparative project. It was really hard for it to be a comparative project in a context where you don’t even have good basic textbooks. Where the data on the law has not yet been analyzed and organized in a scholarly fashion, doing comparative work is extremely hard. Global South Scholars already carry the burden of having at least the first half of their papers doing the rich context-building and providing information. They don’t have the luxury of American scholars where they can assume that the readers know the background. Doing that for multiple jurisdictions, when there isn’t a possibility of cross-referencing existing material would mean that your 10,000 words, which is a typical chapter in an article, already has disappeared. We are not there yet. We don’t have the capacity, the intellectual wherewithal at the moment to do genuinely comparative work on multiple topics and edit it for. I think, you know, single monographs that compare two or three countries is very much a possibility, but for short articles, that’s difficult. But the book was not, not comparative either, because our scholars were in conversation with each other. Most of them were part of the workshop and they had attended the sessions, they were talking to each other, learning from each other, and seeing similarities in their concerns and differences. So, we call it proto-comparative, because we think that this kind of work will prepare the ground for genuinely comparative work in the future intraregional comparisons. And I should also say that, again, to highlight Indian hegemony in the region, even the proto-comparativism is a lot more obvious in the non-Indian chapters than in the Indian chapters, and this is not a criticism of the individual authors, even my own chapter is guilty of this, Indian chapters don’t look around, they look up at Europe and America up very much in courts. But they don’t look around because that’s how power and hegemony imagine itself, as not needing to look down very much. But India has a lot to learn from the experiments happening in the region, you know, the Constitutional Council in Sri Lanka and Nepal is a fantastic idea that we need to discuss, even as we talk about the election commission appointments that the government has proposed. So anyway, I’ll stop there. But that was the idea behind proto-comparativism.

Jeetendra: Apart from this publication, you have also contributed to it with your article, ‘Killing the Constitution with 1000 cuts, and LAOT was fortunate to hold a blog Symposium on the same back in 2021, where we also got very interesting responses from persons like Mark Tushnet and Tom Daly. Since you have written this paper, have you observed any more ‘cuts’ so to speak in the Indian Constitution, and what implication would this have?

Tarunabh: That paper was about the first term of the Modi government from 2014 to 2019. Its central claim was that the regime’s approach to undermining democracy and constitutionalism was subtle, it was incremental, but it was comprehensive. That its approach was numerous micro assaults, on all mechanisms of accountability that the Constitution enshrines. Whether it’s vertical accountability to the people, whether it’s horizontal accountability to other organs of the state, like the political opposition, the judiciary and guarantor institutions, and federalism, or whether it was diagonal accountability to civil society, the media, NGOs, and so on. On all these fronts, the government’s approach was incremental and subtle, but it was comprehensive. It had opened multiple fronts, hence getting a constitution with a thousand cuts. In a paper that I hope somebody else will write, not me, because this is hard work, you cannot get your facts wrong in a paper like this. You have to do an enormous amount of corroboration and fact-checking for every claim that you make. But there’s a paper to be written about what changed under the second Modi government.

My instincts are that it hasn’t been the same, some things have definitely changed. The first change is that I think after the 2019 elections, the regime became bolder, at least in certain matters. It did not give up its strategy of the thousand cuts, but that was no longer the exclusive strategy of the state. It was quite happy to adopt at least some full-frontal, in-your-face democratic assaults and I think this came with a swagger that it acquired after the 2019 win. Examples include the mess that the revocation of 370 was, the Citizenship Amendment Act and more recently, the Delhi Bill, as well as the most recent criminal law reforms. There is a difference between the first-year reforms in 2019-2020 that came with a swagger of the regime. I think the Delhi Bill and the criminal law reforms are signs of an extremely worried regime, which feels that it has been cornered and is about to lose its grip on power. So, the motivations are different, but these are full frontal assaults, these are not incremental and these are not micro-assaults. So, I think that’s one key distinction.

The second key distinction is that in the first regime, on the whole, the use of violence, either state violence or outsourced violence to the various affiliates of the ruling party, targeted primarily the third prong of accountability seeking the civil society. So just patently illegal, and quite brutal violence, routine against journalists and NGOs, alongside lawfare. I think what’s changed in this regime, and I think it is a sign of its desperation, at least in the late second term of the Modi regime. That approach to civil society appears to have been extended to the political opposition. Both the use of blatant illegal lawfare, as well as the use of violence, seem to be sort of encroaching upon the second sphere. I suspect that any sensible reasonable regime would prefer not to do that unless it feels it has to in order to stay in power. I cannot comment on the motivations of the rulers, because I’m not privy to them. But I do feel that that is probably a sign of desperation.

The third thing that became more apparent in the second regime, I didn’t talk about it in my first paper either because it was not happening or because the facts were not around, was the regime’s willingness to use extreme force and brutality and lawfare to defend its plutocrats and crony capitalist friends. The relationship was obvious with the farm laws agitation, as well. But that is very interesting, because the state capture dimension, which we haven’t started talking about in India very much. I would strongly recommend to your listeners, the Zondo commission report in South Africa on state capture under President Zuma, where the commission produced five voluminous reports on the business-state nexus, which is not just, you know, proximity between capitalists and the state, but where the state becomes an instrument of oligarchs. And I think that has been quite a striking feature, at least allegedly, but with some credible evidence that seeks explanation of the second regime. So, I think the second regime has been different in many respects. And I would say, unwise, in many respects, because it’s easier to get away with thousand cuts, thousand micro cuts, but it’s much harder to get away with major full-frontal assaults. And the mobilization with that we saw in the second regime, is a testament to that, especially the mobilization against the CAA which obviously was stopped both by state violence and by the pandemic. But the rules are still not enforced, and that is not nothing.

Eeshan: Tarunabh, thank you so much for that very detailed answer. Just to bring you back to the example of 370 that you cited. Back in 2019, you predicted that after its comfortable victory in the election, the Modi government may abandon the incrementalist approach for a more direct assault on democratic constitutionalism. And specifically with respect to the abrogation of 370 as Arvind Datar also noted, the Supreme Court can’t turn back the clock, even by setting aside the abrogation, given the four years that it’s taken for this action to even be heard before the Constitutional Bench. Do you think this delay itself can be viewed as a symptom of the capture of the judiciary?

Tarunabh: That’s a hard question to answer. I don’t think that at least the higher judiciary is captured in India today. I do think that there are good reasons to worry that individual judges may have been compromised. Some of the things that happen cry out for a response from the judiciary, the most recent being the change in the bench of the Punjab and Haryana High Court dealing with the Nuh violence. So, a lot of very strange things happening with the judiciary that we don’t have any explanation for, and the most obvious and plausible explanation is that its integrity has been compromised. Right now, this is obviously in the realm of allegation and speculation based on circumstantial evidence, but it requires a response from the courts. I don’t think the judiciary as such has been captured. Remember that you can browbeat an institution without capturing it; you can scare it, disembowel it, stagnate it, and you can do many other things to destroy an institution. On delay in particular, I would say that it’s a combination of a judicial reticence to take on the government, for whatever reasons, for reasons of perhaps post-retirement jobs that judges know is the gift of the government, for reasons of some allegations say security and personal safety to reasons of perhaps compromise or capture, to reasons of just fear about backlash. Some judges would legitimately worry about, and they should worry about, the implications of a particular judgment on the institution’s resilience. I am certainly not one who thinks that judges should be martyrs to the cause. What happens to the system is very much a cost that judges have to account for while giving individual judgments. There are red lines, there is a moral baseline below which I think the system is perhaps not worth saving. But you know, once you’re above that moral baseline, I think every judge has to worry about if I do what this case demands is the right thing, would the system survive? So that is a legitimate cost. So even when none of these other things happen, when judges are not afraid, when the judges are not corrupt or thinking about future prospects, she may still legitimately worry about the institution’s resilience.

However, having said that, the delay I think, in part is a systemic and structural problem with the Indian Supreme Court. I have a paper in the Indian Law Review on the Indian Supreme Court’s identity crisis, the Indian Supreme Court has not managed to decide whether it’s an appellate court or a Constitutional Court. And obviously, it has both roots, but its untamed appellate jurisdiction, especially under the special leave provision, has swallowed up its constitutional role, which is not ring-fenced. I am not going to go into that paper, but the paper shows that the structural fault-lines pre-existed this regime. Now, given the very limited capacity of the Supreme Court to play the role of the constitution defender, by the way, we should remember that the Supreme Court is not the only game in town, the High Courts also have the duty, and some have played that role commendably other less so. That systemic issue which normalizes delay, combined with the reluctance to take up particularly sensitive issues, at least under some Chief Justices means that it’s very hard to tell what is the cause here because the court is very capable of taking big issues on a day’s notice or on the same day. So, it becomes very easy also for the court to get away with delay. The final thing that I would say about the delay is that the one thing we have not paid much attention to in Indian jurisprudence is the right to effective remedy and Article 32. Right. Again, this predates the regime, but we have a long-standing jurisprudence of expansive rights but ridiculous remedies, you know, the court is all bark, no bite in so many instances, way back when even in Olga Tellis we know that after hundreds of pages, talking about the right to shelter, what the petitioners eventually got was a six-month notice or something like that. So, in that context, you know, “Operation successful, patient dead” style of jurisprudence has been a systemic issue in the Supreme Court, which means that you can win in court eventually, but that victory is not meaningless, yet it does not give you any effective remedies.

The Delhi government has lost a decade in power without being able to exercise power. And I think that is the real tragedy of the case. And some of those things can be rolled back, some cannot be rolled back, but individual accountability for willful lawfare I think those are the kinds of things that an effective remedy would think about, like, if you are trying on purpose to breach the Constitution. Interim stays are a big issue. I think the court has to start considering staying statutes. If it’s going to take four years then the Delhi Services Act now has to be stayed. Obviously there has to be a highly demanding threshold test something like prima facie unconstitutionality which law clearly satisfies. The election commission law, the Appointment of Election Commissioner, these things have to be stayed until the constitutionality is examined. Because, you know, with a government lighting so many constitutional fires, even a very robust and competent Constitutional Court cannot keep up with it. And then when there are 1000 fires being lit, the fire services will be stretched. And therefore, the court has to be able to put a pause to these fires until it is able to turn its attention to them.

Eeshan: Those are some very insightful points in the difficulty in determining the causes for delay in taking up important constitutional matters, especially the combination of structural issues in the functioning of the Supreme Court, and its identity crisis, as well as the hesitancy in taking up certain kinds of matters. But to prod you further on that point, it’s been nearly a year now since Chief Justice Chandrachud assumed office. His appointment was eagerly awaited and marked by a lot of promise. And we’ve seen many constitution benches being formed and important decisions being delivered over the last few months. So, do you believe that the judiciary has found renewed strength under this CJI or do you think his tenure is yet to deliver on many of its expectations? And if so, what are those expectations that you think still remain undelivered?

Tarunabh:  I’m not very keen on an individual hero worship style to law and politics. And I think individuals’ matter, but institutions matter more. So, yes, the prospect of a Chief Justice, whose commitment to the rule of law and human rights can be taken for granted, more or less should be welcomed. But it’s unfortunate that it is a cause for celebration in our country. That is the bare minimum that we should expect from any Chief Justice. Having said that, you know, the question you’re really asking me is what will be his legacy, it’s too early to answer that. But I think enough is in the public domain, and enough is known to know that that legacy will be checkered. Ayodhya is never going to go away from his record. What happens in the Kashmir case, will matter. What he does in Delhi, will matter. Whether he can stand up to the regime on the Election Commission’s appointments, all of that will matter. Much remains to be seen. One thing I want to say is that it will be a mistake on the part of the commentariat, the intelligentsia, the academy, to think about his record only in terms of blockbuster cases, cases that are read abroad, cases that make it to the Constitutional Law syllabi of Harvard and Oxford law schools. And obviously, no surprises for guessing, what I have in mind is the equal marriage case. Unlike Johar / 377 case, the marriage case has surprisingly perhaps, not been a low hanging fruit. Johar was a low hanging fruit. Its outcome was predetermined, almost any Chief Justice’s tenure would have led to the same outcome as much water had flowed and even this regime did not really oppose it. The hostility of the government in the equal marriage case was astonishing. A Solicitor General threatening the court that the state might refuse to participate in the hearings was unprecedented as far as I know, in constitutional culture. So, the court will pay a political price. And the court has very limited political capital to spend. So, where it chooses and how it chooses to spend it, will matter. So, it’s not a low hanging fruit. But gender and sexuality are extremely important issues for constitutional justice in the country, but are only a part of the big picture. And what we must not permit the court to do is to allow itself to be celebrated abroad by upholding gender and sexuality rights, while sleeping, tolerating, or being indifferent to egregious violations of civil liberty. How long is Umar Khalid been in prison now? These are serious issues that have to be a blot on any judge’s legacy any judge’s career, especially the Chief Justice, who oversees the justice system. The legacy will be checkered, but I think the final chapter is still to be written. And we have to wait and watch.

The final thing I should note is that how much political capital the judges have to spend and how much ability upright judges have to stand up to the regime depends on the broader public discourse. After the INDIA alliance, the public space to oppose the regime has dramatically increased in ways that were unthinkable even six months ago. So, this is the irony of adjudication, that judges are much freer to take on the regime when there is an effective political opposition. When they are least necessary, they are the most effective. But I’m not saying the Indian judiciary is not necessary, it’s extremely important right now. But the ability of the opposition to stand up on its feet and find a voice has given the court a bit more elbow room. It’s only slightly more than before to breathe, and the court must use it.

Archita: Thank you so much for that. And, you know, I think through both of these answers, you’ve also pointed back towards many characteristics of what could add to the Judiciary’s resilience, like with the opposition parties perhaps being sort of being more open about their stances against the regime. Now, going back to this idea of resilience, and we discussed this a little bit in my first question to you as well. I know you said that the book doesn’t really have a specific idea of resilience as a concept. But the introduction sort of, I think, borrows Arban’s framework about, you know, describing sort of resilience as a sort of elasticity or flexibility to an institution. And specifically in the Indian context, where we have something like the basic structure, which is an iron foundation to the Constitution. I was wondering if you could shed some light on if these concepts are necessarily contradictory or if you see any other relationship between them specifically for India or any other regime actually, that has that sort of basic structure idea.

Tarunabh: So, if I understand the question properly, Archita, the question is whether there is a tension between the basic structure doctrine and resilience and the idea of constitutionalism. So is that the question?

Archita: Yes.

Tarunabh: Resilience does demand some flexibility, adaptability and the ability to spring back, especially after a crisis and in the face of trouble, because if you don’t bend your will break. But it’s not the same as mere survival, whatever the cost. Resilience, if it is to be a useful concept, must mean surviving, without losing your individuality, your identity, your sense of self. It’s very hard to think for example, of the transformation from the Weimar to the Nazi regime in Germany as resilience, and so resilience is not merely flexibility based on the political forces of the day, it just adapts and responds to it. Every system does that, and that does not mean resilience. Resilience has to mean the ability to survive with something intact, something that you had. I think far from a tension between the two, the idea of the basic structure is baked into the notion of resilience. Now resilience is not in itself, without more the good thing. It depends on whether that thing is worth defending. So, the Afghan chapter, for example, by Professor Afsah, shows how bad institutional actors and structurally deficient corrupt institutions can also be extremely resilient, often are very resilient. And I think, you know, the colonial system of policing in India is another example of an extremely resilient system, which withstood huge pressure and forces from the constitution to various Supreme Court reform efforts to whatever right. So, resilience in itself is not a good thing, it depends on what it is that has positioned whether that thing is a good thing or not right. But having said that, I think resilience has to incorporate some notion of the basic structure. Otherwise, if everything is changed then the system is not being resilient, it has died.

Jeetendra: We have discussed a fair bit about the democratic decline that we have seen in India. The connected erosion of the Constitution is not just a phenomenon in India, but has also been seen it amongst our South Asian neighbors. So, has this volume helped throw some light on what might be the case behind it? And also, would that shared common colonial history between them have any role to play in it?

Tarunabh: Thanks very much for that question. So, the one thing I think a comparative paper that draws upon this volume, as its background needs to do is to answer just that question, which is, are the faultlines common and shared or are they different? And now I’m in speculative territory, because that’s not a paper that I have written or worked on, and I’ve not seen it. I suspect that some of these fault lines will be individual to the country concerned and some will be shared and common, and perhaps the colonial heritage would be one of the commonalities. I just mentioned, policing, colonial policing, colonial system of the district magistrate, to the extremely powerful local bureaucracy that stands in the way of genuine local democracy taking tools, etc. So, these, I suspect will be common problems across the jurisdiction; the deep inequality that is the legacy of colonialism, the entrenched poverty, lack of education, things that the states have tried to make a difference in to certain extent, and some have been much more successful than others. Sri Lanka has been much better than India or Pakistan. But anyway, colonialism, will figure as part of the explanation, but democratic deconsolidation is a multifactorial phenomenon. It’s not caused by one thing.

The post-colonial history of the countries is also so different. One of the biggest resources a democracy has is mere existence as a democracy over time. We don’t recognize often the importance of deep time in building resilience to building the practices and habits of democracy. India has been one of the luckier ones in that, perhaps one of the main reasons why the Modi regime in ten years has not managed to completely destroy democracy, may well be owed to the habits of democracy cultivated over the time. Maldives does not have that luxury. I think another factor is likely to be the system of governance. Presidential systems tend to be a lot more fragile, a lot more mercurial. You know, again, I cite Maldives and Sri Lanka that keeps moving between presidential, parliamentary and semi presidential systems. I think federalism is a big factor. In India, I think the one institution that refused to roll over to the onslaughts by the regime was federalism because the question is existential for them. Judges and bureaucrats and news anchors and editors can survive and thrive under a new regime by accepting new norms, but political opposition cannot. Most of the political opposition cannot while remaining in the opposition. So, the point is that I don’t think there is likely to be a single answer to your question.

Eeshan:  Thank you for that answer Tarunabh. So, talking about basic structure earlier, and going back to your point on political capital of the judiciary, and how much they have and where they should spend it, I’d like to push back and draw parallel to the very birth of the basic structure doctrine, when we can say that our democracy was facing an unprecedented assault by the imposition of an emergency. So it is in that time that our Supreme Court shined the brightest, in what was we could say, the darkest of times. So, do you think that the judiciary currently should really see where to spend the political capital? Or do you think it is a time when the times get toughest, the judiciary should get the strongest and act the toughest?

Tarunabh: Okay, so just one footnote to your basic structure history, the doctrine is propounded before the emergency.  I very much doubt that a Supreme Court, that refused to uphold habeas corpus during the emergency, would have come up with the basic structure doctrine during the emergency. The emergency was a shock and surprise, remember that India had already had about 25 odd years or 20 odd years of democratic experimentation and an independent judiciary. I think we got lucky in getting the basic structure doctrine, and some people attribute the end of the emergency to the existence of the basic structure. Now today, to your question, I will make a distinction between what can happen and what should happen, or what’s more likely to happen and what should happen. What is likely to happen, takes into account the human condition and in what human beings and institutions do, under certain circumstances, right. What should happen, is important to talk about, especially the norm setting.

I’m not an apologist for judges that have failed to uphold or discharge their Constitutional duties. I think we are absolutely right in criticizing them. But if you’re asking me as a social scientist to predict what is likely to happen, judges are human beings, not moral heroes. Moral heroes do arise and there are individuals who do stand up against the tide of history and change its course. But those people are rare and to expect individuals to deliver from authoritarianism is a mistake. Just in terms of predicting the course of history, and where will I put my money, I think we have to be realistic about what individuals can or will do. Yes, there are the occasional Gandhi’s, who do come up in every nation and are morally uncompromising. However, sometimes compromise is also a good thing, but that’s not where we are in India at the moment. So, what I would like to see is the court standing up to defend civil liberties to different Constitutional values, robustly and without exception, but if you ask me what is likely to happen, I think the court will hedge its bets. The court will give some judgments that the regime can live with and others that it cannot. And the court will try to ensure that if the regime wins the next election, it will not comprehensively shut down the courts. That is what my prediction will be.

Will that mean that I will not criticize the judgments that I think are Constitutionally wrong? Of course not. It’s my duty as an academic, to do just that, to examine questions of legality in a judgment. But these are different questions, the political economy of adjudication, and a great book if you’re interested in exploring the question further, a great book recently published by Yvonne Tew on Constitutional Statecraft in Malaysia and Singapore, would highly recommend that for how do judges adjudicate under the authoritarianism. You can’t ignore the political question, as a judge. I think sometimes it’ll be good to ignore the political question as a judge, because whatever you achieve in the instant case, will come at the cost of the institution’s survival. So, these are legitimate concerns for the judge. But you know, the question is, what is the most strategic intervention that the court can do to defang the regime’s ability to destroy constitutionalism? That’s what I would I would spend political capital, on things that make it hard for the regime to do what it’s doing.

Eeshan: Tarunabh that’s a very holistic and balanced answer. And I think that would be a great note to conclude this podcast. We would like to thank you for taking the time to have this extremely enriching discussion with us. And we also like to once again congratulate you on the release of this book. And I’m sure that like us, our listeners will also have a lot to think about from this podcast. Thank you so much, Tarunabh.

Tarunabh: Thanks very much, guys. It’s been a pleasure talking to you.

[Ed Note: This podcast has been edited by Escandita Tewari and Muskan Garodia and published by Harshitha Adari from the Student Editorial Team.]

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