"How Liberal Is The Constitution Of India?" by Dr Sudhir Krishnaswamy

“How Liberal Is The Constitution Of India?” by Dr Sudhir Krishnaswamy

Source: https://www.youtube.com/watch?v=rSzQD_MI1e8 Duration: 1312.7s

Speaker 1 (00:00): Dienst Dienst Dienst In the second lecture on liberalism in the constitution, I will pick up from the initial points I made in the first lecture, two of them that I want to emphasize.

Speaker 2 (00:41): I scanned the constitution making process and three key structural features of the constitution

Speaker 1 (00:48): and argued that the Indian constitution does not guarantee a liberal political regime. I suggested that it is compatible with a constitutional and democratic culture that was illiberal. In this lecture, I will focus on the post-independence history of the constitution, both by exploring its core text and some amendments, as well as the interpretation of the Supreme Court of various constitutional provisions. At the turn of the 21st century, India faces the prospect of an illiberal but democratic and constitutional regime. And this is the prospect that I want to explore in some detail. So I will begin by reviewing the constitutional text and then focus on Supreme Court interpretation. So when we begin with the constitutional text, one usually starts with the preamble. The preamble assures us many salient features of the Constitution. It commits us to this project, one of which is the liberty of thought, expression, belief, faith and worship. It is the only part of the constitution where the word liberty occurs. No other operational provision of the constitution speaks in the language of liberty or liberalism. So the only reference to liberty is in the preamble.

Speaker 2 (02:38): As no doubt constitutional scholars emphasize and most practitioners confirm, the preamble is not a directly enforceable legal part of the constitution. It is an evocation of values and to that extent we can take the endorsement of liberty as a position about the place of liberalism in the constitution. But in order to imagine how this constitution might be implemented, we would need to go further and look at the provisions of the constitution.

Speaker 1 (03:18): I am going to take us through a short tour of the provisions of the Constitution, detailed reviews beyond the scope of this lecture. Article 19 of the Constitution in the Fundamental Rights Chapter is titled The Right to Freedom.

Speaker 2 (03:38): the only provision though of 19 that expressly talks about freedom is 19.1a which is the freedom of speech and expression all other provisions arguably talk about various autonomies neither in the language of freedom or liberty or autonomy but we needn’t be so strict about a requirement of constitutional language we can broadly understand Article 19 to be an article that guarantees a range of freedoms.

Speaker 1 (04:16): Article 21 protects not only life but an oft ignored part of the article is that it protects personal liberty.

Speaker 2 (04:28): So once again we find like the preamble a reference to liberty in the Constitution but as we will recognize constitutional interpretation has played down this phrasing.

Speaker 1 (04:45): Third, we might find in Article 25 and in particular, but maybe Article 25 and 26 read together,

Speaker 2 (04:54): the recognition that we have the freedom of conscience and the right to freely profess, practice and propagate religion, our religions.

Speaker 1 (05:06): So in 25 and 26 we get the protection broadly of religious freedoms. So far I have surveyed two parts of the constitution.

Speaker 2 (05:17): The preamble which talks about liberty of thought expression, belief, faith and worship. And then I have taken us through article 19, 21, 25 and 26 which actually sketch out what the preambular protection might look like.

Speaker 1 (05:36): These two parts of the constitution arguably are the repositories of liberalism to the extent that it occurs in the constitution. Directive principles, part four of the constitution, I had argued in the first lecture, might be seen as a protection of liberal essentials,

Speaker 2 (06:02): But significantly, the directive principles are neither phrased as freedoms, they don’t speak in the language of freedoms, nor are they directed at individuals. There are no guarantees to individuals. In fact, the directive principles are obligations that are cast on the state and individuals arguably have very little purchase on enforcing them, at least in the first instance. So directive principles in the text of the principles in Part 4 of the Constitution do not appear to be a ringing endorsement of liberal values, but I suggest that a second deeper reading might reinterpret directive principles in a different light. some people refer to article 51a

Speaker 1 (06:59): the fundamental duties in the constitution

Speaker 2 (07:02): as somehow having something to do with liberal values this is puzzling because the early as we all know article 51a was introduced into the constitution by constitutional amendment in the 1970s round about the time of the political emergency in the Indira Gandhi regime. When the Swaransing committee proposed the introduction of fundamental duties, these

Speaker 1 (07:29): are duties of citizens, mind you, not duties of the state, there was a very strong pushback

Speaker 2 (07:37): that the endorsement of constitutional duties was an illiberal idea, was a threat to liberalism. Because if, for example, we require that all citizens abide by the constitution, arguably the state can enforce these constitutional obligations in a particular way. We increasingly find in the last decade that the Indian Supreme Court is indeed interpreting fundamental duties in this way.

Speaker 1 (08:11): And far from empowering individuals and protecting them against state power, they may well empower the state and press individuals into a corner. So if one were looking for the liberal parts of the Indian, the liberal references in the Indian constitution, the search would end here.

Speaker 2 (08:36): Remember in the first lecture I surveyed the structural features of the constitution that might be seen as liberal. In this part I focus on only the textual features of the constitution that might be seen as liberal. At the end of this section, we may summarize and say that the constitutional text does make some references to liberty, not to liberalism expressly, but liberty certainly and to freedom.

Speaker 1 (09:10): And to that extent might be seen as encoding a liberal political regime. But we all know and recognize that a constitution is only as good as its enforcement by the Supreme Court.

Speaker 2 (09:28): So we must quickly turn to look at how the Indian Supreme Court has interpreted the textual provisions of the Constitution as that will give us a deeper insight about the extent to which liberal political values are embedded in the Constitution.

Speaker 1 (09:47): Now, I can’t survey all of the cases that the Indian Supreme Court has decided on the question evoking liberalism. I will confine myself to three or four significant cases.

Speaker 2 (10:04): And the first thing that one discovers when one enters the databases to scan the Supreme Court’s output on the concept of liberalism in the Constitution is that it hardly ever refers to liberal or liberalism in the justification of its decisions.

Speaker 1 (10:27): In fact, the first reasonable and significant evocation of liberalism is way after the emergency in Indira Gandhi versus Raj Narayan, where Chief Justice Ray broadly observes that liberalism requires the separation of powers.

Speaker 2 (10:50): Remember, we noticed the debate that K.T. Shah, where K.T. Shah argued that a liberal constitution requires the separation of powers. That was not accepted in the Constituent Assembly debates and into the text of the constitution. But Chief Justice Ray, I wouldn’t say in an obiter observation, but in a part of his justifications for his decision in Indira Gandhi v. Raj Narayan, talks about the need for separation of power and why a court should not be deprived of judicial review powers. remember that this happened in the late 1970s

Speaker 1 (11:35): so for the first two and a half decades the court had no need for the concept of liberalism in its interpretation of the constitution in the last few years

Speaker 2 (11:47): and by which I mean the last two to four years there has been a small spurt in the court’s recognition and use of liberal principles in its decision making. We owe this spurt almost to a single judge. Chief Justice Mishra, just before he retired, issued a range of opinions where he evoked liberal principles in interesting ways.

Speaker 1 (12:17): First, in N. Radhakrishnan, he asserted liberalism as requiring the epistemic freedom of authors to offend those who might be religiously minded. So in this case, where a ban was sought on a book because it offended religious sentiments, Chief Justice Mishra said that liberalism in the constitution requires that the book not be banned. In Shabrimala, the second case,

Speaker 2 (12:52): the Shabrimala case which is still ongoing in some ways, He evoked constitutional liberal values once again. And he suggested that constitutional liberal values in the fundamental rights should be used to constrain both religious and political majorities.

Speaker 1 (13:13): This is a very strong recognition of the critical distinction between liberal values, democratic values, and constitutionalism.

Speaker 2 (13:26): In this case, and I’ll just rehearse the facts very briefly, we are dealing with the restriction of a Kerala state regulation which endorses a particular religious belief that women in their menstrual years should not be allowed to visit a particular religious shrine. So what effectively Chief Justice Mishra is saying that while a religious majority might believe that this restriction on women was well placed and while the political majority of the state government might endorse that religious belief, the liberal requirements of Part 3 of the Constitution act both against state power as well as against religious power.

Speaker 1 (14:22): This kind of endorsement of liberalism is pretty much what the force of liberalism might mean. But I suggested a moment ago that this is too few and literally the work of a single judge.

Speaker 2 (14:40): There is a minor reference by Justice Chandrasud to liberal values in the context of the Aadhar judgment, but that reference is very modest and has some digresses into what neoliberal values might mean and so on and so forth, and not very useful to the context of this debate.

Speaker 1 (15:04): We understand that the Indian Supreme Court sits in several benches and unfortunately it appears that with the retirement of Chief Justice Mishra, this emphasis on the use of liberal values has declined.

Speaker 2 (15:20): We recognize that the Shabrimala case from which this strong endorsement emerges is currently under review by a larger bench of the Supreme Court and may well be rolled back. We also recognize that in recent challenges to internet shutdowns and the repeal of Article 370, the court has not endorsed a strong liberal position in response to these cases. And these cases, none of these cases are decided, so it’s difficult to anticipate where the court might go. But what we can tell by the early hearings and orders is that liberalism is not driving the judicial outcome or the judicial argument in these cases.

Speaker 1 (16:12): so here we are

Speaker 2 (16:16): the Indian constitution the constitution of India 1950 does in its text refer to liberty it does refer to freedom

Speaker 1 (16:26): at a few places it’s not all over it’s not suffused in the text but in a few parts of the constitutional text

Speaker 2 (16:34): there is warrant for liberal protections but the Indian supreme court in its interpretive

Speaker 1 (16:42): practice has not relied on the concept of liberalism as an essential part of its adjudication.

Speaker 2 (16:52): So why is it, we might ask, that reading the preamble has become a sort of cultural practice

Speaker 1 (17:02): of both opposition to the Citizenship Act amendments, but a broader reassertion of, you know, seen as a sort of talisman maybe against majoritarian politics. We might think that if indeed the reading of the preamble and the assertion of the constitution can protect us against majoritarian excess, it serves a certain function in our political lives.

Speaker 2 (17:44): But does this reading of the preamble endorse a liberal politics?

Speaker 1 (17:53): Is it just that the constitution wards off majoritarian excess but doesn’t guarantee too much in terms of liberal freedom? I have suggested in both lecture 1 and lecture 2 that liberalism is not encoded in the constitution, not in pre-independence India and not in post-independence India’s judicial practice.

Speaker 2 (18:25): While there is some support for the view in the text of the constitution, these parts of the constitution have not been employed in a way that a liberal umbrella and a liberal protection is built around every citizen in this country.

Speaker 1 (18:48): So it raises the prospect that liberalism is not a necessary consequence of the Constitution. It raises the prospect that we might retain our Constitution and yet become an illiberal country. So where should we locate a practice of liberalism if not in the practice of our institutions?

Speaker 2 (19:18): And this is where I turn to the idea that both in pre-independence India and in post-independence India, the reservoir of liberal values is in social, cultural and political practice, not in the constitutional core. So the greatest defense of liberalism for me will emerge from an education and a practice of liberal values. And the challenge for our times is to recognize that liberalism as a political value is distinct from constitutionalism, which simply restricts the exercise of majoritarian democratic power and democracy, which assures us that one person has a vote and that we have a stake in the political regime that governs us.

Speaker 1 (20:19): So calling for a practice that goes beyond just the endorsement of the constitution is the need of the hour.

Speaker 2 (20:30): We need to both understand and embrace the view that liberalism as a political value goes beyond the constitution.

Speaker 1 (20:41): And though we might imbue the constitution with talismanic powers, it will not guide us or necessarily take us to a liberal future.

Speaker 2 (20:52): It is that both intellectual and social and political challenge that faces us at the start of the 21st century and the Indian constitution, while it might be an aid in that political project, is not an essential.

Speaker (21:22): Thank you.