Constitutional questions raised by CAA need answers: Ashoka Univ Professor

Madhav Khosla, Ashoka University Professor. Illustration by Binay Sinha
Madhav Khosla teaches law and politics at Columbia Law School and Ashoka University. He is the author of India's Founding Moments. He tells Aditi Phadnis equality and freedom are fundamental to the Constitution but could face challenges in the future. Edited excerpts:


Across the country over the past month, lawyers, students and activists have been reading out the Preamble to the Constitution to assembled crowds: Both as an affirmation of values and as protest. What is it about the Preamble that is so evocative of Indian democracy?


Constitutions do many things: They create institutions, they separate power among different branches of the government, they describe the rules that govern politics, but —above all — they constitute the citizen and the nation. The Preamble is a powerful statement of how the Constitution conceives of citizenship and nationhood. It evokes an idea of India that is committed to treating people as free and equal beings, and the constitutional provisions that follow the Preamble are an attempt to work out what freedom and equality mean.


What is unconstitutional and undemocratic: the Citizenship Amendment Act (CAA) or the protests against a piece of legislation passed by Parliament?


I think that it is fair to say that the Citizenship Amendment Act (CAA) raises grave constitutional concerns, both in terms of the Constitution’s guarantee of equality and secularism. Of course, the constitutionality of the law, as of any law, will have to be determined through the processes that exist, namely by way of adjudication by the judiciary. But what can we say is that the law raises several serious constitutional questions that need to be addressed.


As far as the protests are concerned, the Constitution gives us the right to assembly. Being able to protest, to register disagreement, is a crucial feature of any democracy. It does not allow, of course, for that disagreement to take specific forms, such as violence. But the striking feature of the protests have not only been their reach and their resilience but also that they have been, by and large, silent and orderly. They have highlighted what a constitutional sensibility might look like: A procedural commitment to peace, and a substantive commitment to equality.


Elaborate discussion and thought went into constitutional provisions relating to the status of Jammu and Kashmir. These have now been diluted as they were “temporary provisions” but have been challenged in court. What did Constitution-makers have in mind when they drafted the provisions?


As we know, the accession of the State of Jammu and Kashmir to the Indian Union was a complex and, in some ways, fraught endeavour. The granting of some degree of autonomy to the State of Jammu and Kashmir was crucial to the State becoming part of India. As Faizan Mustafa has rightly argued, Article 370 enshrines the contractual rules that were part of the accession. In other words, you might say that without the provision, there is nothing that ties the State of Jammu and Kashmir to the Indian Union. The provision was thought to be “temporary” in the sense that its continuance and the future relationship between the State of Jammu and Kashmir and the Indian Union was left to the Constituent Assembly of the State of Jammu and Kashmir. But it was not meant to be “temporary” in the sense that it could unilaterally be made inoperative.


The removal of Article 370 could only occur with involvement of the Constituent Assembly of Jammu and Kashmir. That is a body that no longer exists. Upon its dissolution, it left us with both a separate constitution for the state (a fact that captures Jammu and Kashmir’s unique place in Indian constitutional setup, as no other state has its own constitution) and it also left Article 370 in place. On one account, Article 370 can never be removed because the body that was essential to its removal — Constituent Assembly of Jammu and Kashmir — is no longer present to make this possible.


I’m not entirely sure if this account is correct — that is, whether there is no way at all to render Article 370 inoperative — but the present means by which this has been done seems to have very little constitutional basis. There are three separate aspects of the ongoing controversary that merit attention. First, there is the nullification of Article 370 without any involvement of the State of Jammu and Kashmir. Thus, a decision that could not, as per the Constitution, be taken by even an ordinary legislature of the State of Jammu and Kashmir has been taken without any involvement of the State whatsoever, as the Governor is a central appointee. Second, there is also the bifurcation of the State of Jammu and Kashmir without any reference to the State’s legislative Assembly. Under the Constitution, the Union does not have to take the consent of states before altering boundaries and creating new states, but it does need to refer the Bill for such a change to the relevant state legislature. The Supreme Court has placed great emphasis on such a reference, and on the rights of states to debate the matter and offer recommendations. That has not happened in this instance. Finally, there are questions about the restrictionsin the State of Jammu and Kashmir,from preventive detention to communications blackouts, after the decision to bifurcate it and make Article 370 inoperative. These restrictions, in turn, raise their own constitutional concerns.


Finally, one should note that it is hardly the case that Article 370 has been working as planned in prior decades. In reality, several presidential notifications have undermined the provision in crucial ways. But the present moment involves a constitutional departure of a whole new order.


Conventional wisdom is: When the judiciary is strong, the government is weak; when the government is weak, the judiciary is strong. Is this correct, or is judicial overreach just a phrase?


I think the statement is probably too simple and succinct to capture the complex realities of judicial power in India. But, I think, what can be said is that the Indian judiciary has had some remarkable historical moments. It has often powerfully recognised rights, defended a certain framework of government, and been sensitive to questions of injustice. Yet, it is currently going through a phase which many commentators — correctly, I think — regard as among its weakest moments as a guarantor of the Constitution. As those who regularly observe the Indian judiciary and track its developments closely, commentators such as Gautam Bhatia and Suhrith Parthasarathy, have captured, the higher judiciary has been astonishingly silent and non-interventionist in its review of state action. The examples are almost too many to populate, and they range from electoral bonds to civil liberties. If this continues, it is hard to see how the Supreme Court’s authority can sustain. Over time, the risk is that actors will begin to challenge the outcome of court decisions, and the entire constitutional apparatus will be called in question.


Support for affirmative action for India’s religious minorities is interpreted as pseudo secularism. Do you think insufficient constitutional assertion for the rights of the majority has led to this belief? What were the issues when this matter came up during the drafting of the constitution?


As I have argued in a new book, India’s Founding Moment, the Constituent Assembly rejected special treatment for religious groups. It had very good reasons for this. The constitutional vision had a conception of citizenship unmediated by identity. It hoped to move us away from the colonial imagination, which had seen Indians as condemned to specific groups, and instead institute a framework where we could be treated as individuals, capable of agency and of acting by ourselves. This vision not only enabled freedom — I could not be free if my interests were already pre-determined by some group identity — but it could also provide for a sustainable political environment. The partition of British India was, after all, a constitutional breakdown, and it revealed the instability and impossibility of a politics that was structured around identity, around constantly accommodating one identity against another. The only way to a working political situation was to escape this framework.


Despite constitutional safeguards, state governments from the opposition feel they live in a rough neighbourhood, threatened by the governor. Are these engineered controversies?


It’s hard for me to say too much about which specific controversies are real and which ones are exaggerated. But we can recognise that the Constitution grants considerable powers to the Centre. Many of these powers had their origins in the fact that when India was born, there was little basis on which one could be confident of governance in its various regions. Over time, this has of course changed, but those powers remain. Whether extraordinary powers are limited to extraordinary situations will depend, not on the Constitution, but on politics. It is, after all, politics that determines the shape and application of constitutional provisions. The question is not whether the Constitution — whether one sees its fiscal provisions or the powers of governors — will empower regional governments, but whether regional government can create a new constitutional conversation around their powers.


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