The 70th Republic Day has ushered in lyrical constitutionalism of a kind never witnessed before in the history of independent India. It has also ushered in the full-blooded emergence of the constitutional commons as the space for a public, shared, collectively crafted jurisprudence of citizenship. Conversations on citizenship draw upon the rich tapestry of the Preamble and the echoes it contains, bringing people together in ways that shine a torch on the pathways to a transformative jurisprudence for our constitutional courts.
It is not anymore that the people of this country falter in their steps towards courts to seek justice; it is courts that even while reciting the Constitution, are unable to take definitive positions, unfettered by governmental dispositions.
When I suggested in 2012 in Tools of Justice that transformative constitutionalism is by definition insurgent, I had not in fact imagined that we would witness an insurgency of these proportions that carry forth rhythm, sight, sound, musicality, tenacity, constitutional wisdom, collective action and the redefinition of leadership (in terms of caste, religion, gender, class and age especially) in quite this manner in the face of threat, governance by fear, and the perpetual anticipation of terror.
Just the demonstration of the possibility of this resistance is deeply transformative and moving. Will India and Indian-ness ever be the same again?
Ways of the Right
The ways of the Hindu Right are cruel and ruthless beyond measure, disregardful of the rule of law, and utterly anti-national, the‘national’ defined in broad inclusive terms of ‘upholding the spirit of the Constitution and respecting its fundamental tenets.’ We have seen demonstration of that as well — especially in Kashmir and Assam, also in Uttar Pradesh, not to speak of the violence on university campuses. Against the brutal reign of terror, and threat of more to come, against a future that seems bleak on every score — employment, economy, education (especially higher education), and governance — it is the public and spirited defence of the constitutional commons that has forced accountability on the state and internationalised its depredations.
The recitations of resistance range from wresting the national anthem from its empty ritualistic performance by military bands or the ritual flag-hoisting on Republic Day and Independence Day, to reinstalling the tricolour as a symbol of resistance. Recitations of resistance combine Faiz with the Preamble in the voice of Chandrashekhar Azad on the steps of Jama Masjid before he is arrested for inciting violence. The phrase ‘incitement to violence’ itself acquires a new meaning in the national space of this resistance — the recitation of the Preamble incites the state to violence, forcing a judge to ask the state, ‘What offence? Tell me. He’ll read the Preamble?’
Extrapolating from the ideas of Nobel Laureate Elinor Ostrom and scholars of the commons, the conceptualisation of the Constitution as a commons opens it out to radical, insurgent readings that redefine belonging and ownership — it is no longer the property of state, legislatures and courts to (mis)interpret in the service of political expediency/judicial bias/equivocation. It is the people who through collective action and civic engagement hold institutions to account and provide the tools and experiences that must shape constitutional interpretation. The Preamble sets out the spirit of constitutional morality (not its narrow prescription) that guides an understanding of protections set out within. It also makes intelligible to people the legislative, judicial or executive action that undermine the spirit of the Constitution.
For this public engagement is a justice cascade to borrow from Kathryn Sikkink, that will not (does not) stop with the recitation — it has forced the government into courts and has forced judicial deliberation on the reach of constitutional protections to discipline the state. Although we see a marked pushback from the spectacular position of the right to privacy judgment in 2017 — with no effective reliefs granted in the Kashmir cases and a deferral on the Citizenship (Amendment) Act, 2019, or CAA, 2019, among others — it is institutions of justice that are now on trial. This is the singular achievement of this historic moment: the rupture of a sequestered ‘constitutional jurisprudence’ through the articulation of an expansive, inclusive constitutional commons and the performance of lyrical constitutionalism.
Freedoms as birthright
This insurgency also holds a unique pedagogic moment: it demonstrates a different way of imagining the Constitution and a different understanding of citizenship. In her recent work, Birthright Citizens, African-American legal historian Martha Jones argues that citizenship is distinct from and deeper than political rights or voting alone, and embedded in birthright (as African Americans argued long before they belonged equally in the Constitution). In our context, we must ask, what is birthright? Is it swaraj (freedom or azaadi that has distinct cadences deriving from location)? Is it the elimination of untouchability (as Dr. Ambedkar observed)?
Is birthright embedded in the undisturbed right of forest dwellers to the forest commons — Maava Naate Maava Raaj (our village, our governance), as Dr. Jaipal Singh Munda had argued for in the Constituent Assembly deliberations? Or is birthright embedded deep within the right to dignity and self-respect of losatravesados, the migrants, the crossers that Gloria Anzaldúa speaks of in her stunning work on borderlands? Is it all of this? For after all, as Martha Jones observes pertinently, “sometimes citizenship was defined in constitutions and statutes, most of the time it was not”. Certainly, citizenship by any definition is not a dole to be handed out by rulers to compliant subjects nor is its grant an alms deed to be distributed at whim.
Since the conversation has now opened up to critical public deliberation, how would we draw constitutionscapes across the rugged terrains of azaadi? The Constitution itself recognises various levels of azaadi, lest we forget. The late B.D. Sharma famously called the Fifth Schedule ‘a Constitution within a Constitution’; prior to August 5, 2019, the Constitution of India recognised the Constitution of the State of Jammu and Kashmir. Areas under the Sixth Schedule in northeast India similarly have constitutional guarantees of autonomy.
The guarantees of azaadi to Dalits under the Constitution are unprecedented. Although each of these is only observed in the breach, mapping constitutionscapes in their specific figurations means keeping these firmly at the centre of debate and collective action. Witness its signposts: Chandrashekhar Azad, the dadis of Shaheen Bagh, the Ghanta Ghar resisters in Lucknow, resistance as withdrawal by the people of Kashmir, campuses, Kerala’s challenge to the constitutionality of CAA, the proxy strikes on conscientious resisters, the shutdown of Jammu and Kashmir, incarceration in detention camps and the proliferation of camps, the deferral by constitutional courts, the languages of rule and resistance, and indeed the languages of jurisprudence trapped in a chokehold that defers the pronouncement of freedom as birthright.
The re-instatement of this experience and ways of knowing interwoven with a resurgent public constitutionalism, might help us reclaim the idea of citizenship as birthright and inscribe the constitutional commons by “occupying” them and establishing a shared, collective, inclusive ownership.
Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad