Constitutional Originality and Indian Liberals

 

In the United States, the Senate hearings on nomination of Judge Amy- Coney Barrett is of course evoking a strong and passionate debate. The timing is what it matters. The intelligentsia on the Democrat side prefer waiting for the November 3 elections before the nomination happens. If Judge Coney Barrett, gets confirmed, the Supreme Court will be heavily weighing in favour of the Conservatives. The Democrats, if they win the elections, can propose to increase the strength of the Court, yet it is about the adjudication of any disputes that might arise in November 3 elections that gives a strong edge to the Republicans in the judiciary.

There was an interesting article by Cass Sunstein in Bloomberg Judge Coney Barrett. The article is available here and Sunstein’s tweet on this is available here. There is an interesting response by noted economist Oliver Blanchard to the tweet of Sunstein. The response tweet is available here. The article and the tweets around that article centre around a few interesting propositions. It is about the constitutional fundamentalism. Judge ACB as she is popularly being known has more than one occasion called upon implementing the law as stated in the original form and not to predilections of the judge.  

 

Her revealed preferences notwithstanding, her stated preferences are very simple. As stated above, she believes the judge must apply the law  as it written there and not what the judge wishes it to be. This reveals a distinction between the positive and the normative. To her, the temptations to be  normative is something to be resisted with. Further, she seems to be clear that judges must not be policy makers. Sunstein goes on to point out that her actions have often betrayed what she has been stating. Yet, as one reads the piece, it is not clear whether Democrats oppose her for the dichotomy between her stated preference and revealed preference or is it about her position itself which goes against the normative applications. While the debate might ignite passions, it is with some irony that one can note, the exact opposite prevails in the Indian context. It is the Indian liberals who have a predisposition for so called constitutional fundamentalism and advocates normative applications.

 

 

Regardless of her actual actions and judgments, Judge ACB is fortright and correct in her views. The judges must interpret the law and implement the law and not make the law. The law might be an ass, yet it is the law that is enacted by the executive with the approval of the legislature. The legislature passes the law. The judiciary cannot make the laws. The judges can be never be policy makers. Yet, the liberals across the world would want to engage in judicial capture and start framing laws when the legislature and executive branches go out of their control.

 

In India, there is wide section of intelligentsia which is not averse to judicial capture. The public interest litigation is a classic instance of ensuring a say in policy through judicial interventions when they do not have a presence in legislature or executive. The original concept of PIL has long gone into the dustbins. It is being manifested as the tyranny of the unelected. Any legislative action is sought to be stayed by the court of law. The courts of law have all the right to adjudicate on the same, yet the premise is law is constitutional and valid till held otherwise. The tyranny of the unelected is to make it the opposite. Any law is invalid and unconstitutional till it satisfies the so-called constitutional patriots. The law might be upheld by the court of law yet it would not be accepted because it does not suit the whims and fancies of that intelligentsia that cannot get elected but wants to run the country. India has paid a heavy price in recent times on a number of issues relating to their behaviour. One of the frustrations that is emerging from this intelligentsia is because they are not able to use the judiciary to wield power as per their whims and fancies. They feel that judiciary is no longer dancing to their tunes. While in this context, there is considerable similarity among the limousine liberals throughout the world, the irony is Indian and American liberals differ in their emphasis on originality.

 

The constitution is merely a framework for effective functioning of the country and nothing more. It cannot be sacrosanct. The constitution was written in a context and period of time, yet with passage of time, the conditions vary. Britain never has had a constitution and it has not been hampered by the lack of constitution. France has had five constitutions in the republican era, the reason why France is now called the Fifth Republic. Indian constitution too did not evolve in a vacuum. It is a product of more than five thousand years of civilization. India did not emerge on August 15, 1947. It was just that one rule gave way to another. To the Indian liberals, India was non-existent before August 15,1947. To them, if there is one document that is whole and sole, it is the constitution. This fallacy has to be called out. In fact, the constitution itself has been amended more than 100 times. For instance, the word socialist was inserted into the preamble indicating a path towards socialism. Yet for all its glamour, socialism is a form of allocation of economic resources. As Dr. Ambedkar pointed out, to insert socialism would be arguing no other form will emerge that is better form of economic and social equity than socialism. To the liberals, it is their version of End of History as opposed to the original right wing proposition of Francis Fukuyama.

 

While the American liberals might be right in criticising Judge Coney Barrett for her views on constitutional originality, their own counterparts in India have the exact opposite view. In fact, the American liberals themselves would go all out against the Indian rejection of constitution as and when it happens proclaiming how the constitution is the bulwark and foundation of Idea of India. This must be called out. To them it is a mere smokescreen to wield power behind the scenes through convenient forum shopping. To some others, it is a tool to wield to further their agenda in the garb of constitutional protection. The Indian culture and civilization is not a product of the constitution that came into force on January 26, 1950, it is the other way round. The sooner India realises and follows the path of the former, the better it would be.