Literary Review

South Asian constitutions

Unstable Constitutionalism; Mark Tushnet & Madhav Khosla  

Comparative constitutional law, which involves the study of constitutional jurisprudence and its relative application to political institutions in different countries, has in recent times emerged as an important field of examination. But much of the academia involved in these comparative studies has focused its attention on the constitutions of Western democracies. Even when constitutions of developing countries are considered, the comparison often features their structures qua those contained in the constitutions of supposedly more sophisticated societies.

As a result, what we have is a highly lopsided compendium — for instance, existing studies partake very little of the challenges faced by constitutional democracies in South Asia. This imbalance is sought to be corrected by a new, and admirable, anthology of academic essays, Unstable Constitutionalism: Law and Politics in South Asia, edited by Mark Tushnet, a professor of law at Harvard Law School and Madhav Khosla, a Ph.D. candidate at the Department of Government at Harvard University.

Unstable Constitutionalism contains 12 different contributions, each authored by renowned experts in the field, and features the constitutions of five South Asian countries: India, Nepal, Pakistan, Bangladesh and Sri Lanka. Tushnet and Khosla’s joint effort in explaining the common instability of constitutionalism in these countries sets the tone for the book. The writers tell us how, despite the significant differences in history and politics, these nations share more than just geography.

The constitutional developments in the five countries, Tushnet and Khosla write, are marked by “recurring tensions that lie at the intersection of law and politics.” According to them, the significant participants in the administration of each of these countries are inherently committed in one form or another — whether liberal or otherwise — to constitutionalism. The area of concern, often common to the five countries studied, is in agreeing on a single institutional design ideal for governance given their respective societal challenges.

Sujit Choudhry, a professor of law at the University of California, Berkley, adds further weight to Tushnet and Khosla’s introductory assertions by focusing on two significant areas of Indian constitutionalism: the doctrine of basic structure that forbids Parliament from amending core features of India’s constitution, and the Supreme Court decisions on the constitutionality of caste-based reservations. The former, according to Choudhry, was an effort by the Indian judiciary to stabilise Indian constitutionalism; a confrontation, as it were, of a single political party’s abuse of a dominant position. The latter, he writes, is especially significant in that “India is one of a number of polities in which the beneficiaries of affirmative action are not ascriptive minorities but rather majorities.” These areas, in his belief, carry much significance, even though a comparative examination is yet to fully take place.

The rest of the collection in Unstable Constitutionalism is divided into two parts. One details the forms and sources of instability in the five countries and the other focuses on reactions and responses to instability. The first part contains a telling essay by Mohammad Waseem, a political science professor at the Lahore University of Management Sciences, who writes forcefully on the reshaping of constitutionalism in Pakistan by various institutions based on their respective vested interests. Constitutionalism in Pakistan cannot be grasped fully unless the policies and actions of the major players – such as the army, Islamic groups, political parties, and ethnic forces – are considered as proponents of parallel legal and institutional perspectives.”

The essays in the second part of the book, on how these countries and their respective constitutional institutions react to instability, are of great significance. Pratap Bhanu Mehta, president and chief executive of the Centre for Policy Research in New Delhi, for example, has critically elucidated the role that the Indian Supreme Court plays in striving to seemingly stabilise the country’s democratic edifice. The court, Mehta writes, has the power — in some cases acquired by arrogation — to not only declare parliamentary law unconstitutional but also parliamentary amendments to the Constitution as nullities. What’s more, the higher judiciary often involves itself in important executive functions. The court, according to Mehta, performs an almost “promiscuous” role. “It seems that nothing is beyond the scope of its power and jurisdiction.”

The prevailing narrative and the existing critical studies on the Indian Supreme Court do not, in Mehta’s opinion, offer real normative guidance. Instead, he argues that the court must be seen as “an institution that must be mindful of the fact that it is competing with other branches of government for broader public legitimacy”. The court’s decisions, therefore, are not often driven by simple concerns of rule of law. Rather they take on partake a political character. This results in a court that acts not on the basis of theory and the pure letter of the law, but “as a custodian of what it perceives to be the public interest,” writes Mehta.

When we look at the five countries studied in the anthology, the Indian Supreme Court’s approach might be rather distinct. But, as these essays show, there is much to be gained from a comparison of the experiences of different constitutional institutions across these nations.

The writer is an advocate practising in the Madras High Court.

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Printable version | Jan 25, 2022 2:47:45 AM |

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