Rescuing Insurgent Possibilities of Indian Constitutionalism: Varta Ep. 1

Prannv Dhawan

About Varta: Dialogues on India’s Constitutional Democracy

Indian constitutionalism is in a perilous state. Its ability to guarantee democratic governance and citizens’ rights are under deep stress. This democratic backsliding is not just on account of authoritarian and populist politics alone but is also manifesting itself through sophisticated autocratic legalism and abusive constitutional politics. In such times, it becomes important to evaluate various facets of sociological and political legitimacy and resilience of the Constitution, without giving in to idolatry, defeatism or obscurantism. Through the Varta podcast, Law School Policy Review aims to do the same.

Episode 1: Rescuing Insurgent Possibilities of Indian Constitutionalism

In the first episode, Prannv Dhawan speaks with eminent constitutional scholar and sociologist, Prof. (Dr.) Kalpana Kannabiran. She’s a professor and director at the Council for Social Development in Hyderabad, Telangana. She’s the author of ‘Tools of Justice: Non-discrimination and the Indian Constitution’, where she explained the concept of ‘insurgent constitutionalism’ and has done an interesting interdisciplinary study on issues of constitutional justice in India.

Whilst insurgent constitutionalism sounds like an oxymoron given the contradictory nature of revolutionary and constitutional methods, this idea has great resonance in the Indian context. This is because Indian constitutionalism represents the culmination of various radically transformative ideas, which have been propagated within and beyond courts, parliament and civil society by various social movements and constitutionally aware citizens. With this short and comprehensive discussion, we want to evaluate the unconstitutional resonance associated with insurgent possibilities and to find whether they can rescued from the present moment.

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Prof. (Dr.) Kannabiran: Thank you, Prannv and Shreyas, for this interview and this opportunity. I’m happy to be speaking to you and I hope that we can, in this conversation, develop at least a step or two further in what I perceive as a common journey.

Prannv: Thank you so much, ma’am. So, my first question relates to the whether the insurgent possibilities are those which were defeated constitutional aspirations. I find it deeply concerning, in the current day and age, that our electoral and political system does not provide any reservation or political representative quota for religious minorities, even though that was a consensus which was reached during the freedom struggle. It was provided that minorities will have reservations with joint electorates and there will be certain increments to ensure they’re represented. So, in that context, considering our present moment of majoritarian politics, do you think there are certain ways in which some ideas which were defeated in the founding moment could be rescued and implemented?

Prof. (Dr.) Kannabiran: That’s a good question to start with. We are at a stage where minority rights at a very, very basic level are imperilled in very serious ways. We are also witnessing fragility in the justice system with regards to majoritarian and hate politics, which often times includes state practice or is fuelled by state practice. There is a peculiar coming together of the executive and the judiciary at a time when that separation is perhaps the only lifesaving element that might work in the favour of democratically-minded citizens committed to pluralism. So, of course, it is a moment where we need to think very carefully about minority rights not for the sake of the well-being of minorities alone but for the sake of freedom in this country, because as long as you don’t safeguard, or as long as we are not able to safeguard the rights of minorities – and I would go back to Dr. B.R. Ambedkar and his definition of minorities which includes the Scheduled Castes and Scheduled Tribes – it is our collective existence that is in peril. And so I think that the way to think through this is not by distancing the self from the problem, but to see what is the harm that the problem can cause to the self as part of a collective. What is the basis of that collective? I was, in fact, reading a really educational article by Shaunna Rodrigues on Abul Kalam Azad[2], a forgotten figure in our constitutional imagination. She looks at the way in which Maulana Azad contributed an Islamic sensibility to the making of the Constitution, precepts that were based in pluralistic religious cultures, not at all based on a majoritarian Hindu notion. One of the ideas that came up in that set of readings that I went through at that point was that there ought to be a minority veto on majority candidates during elections because that is the way that you will actually be able to ensure that elected representatives remain accountable to their electorates. Today, I guess one could argue we need such ideas.

In fact, today we witness a disabling with respect to women, minorities and dissenters (including farmers). In that kind of situation, it becomes very difficult to say how much we have entrenched an insurgent idea of the Constitution. But I think that we are already deploying an insurgent idea of the Constitution when we are asserting our rights and opposing the wrongs of the majoritarian state. This is something that I’ve called the ‘Constitution as Commons’,[3] an idea that you don’t necessarily look at courts as the sole authority for the interpretation of the Constitution. It is something that must be interpreted through a process of collective deliberation on its basic precepts. I think that ultimately that is the only way in which we can even walk the path of an insurgent constitutionalism.

I, of course, have a great impatience. I want things changed now. But I understand that timeframes are not something that can be determined entirely by us. Like, it’s ranging from six decades to four decades, you know, to be resurrected. We have to understand that the timelines of insurgencies need not be in the here and now and immediately in our lifetime. But that shouldn’t deter us from working towards those insurgencies anyway.

Prannv: Thank you so much, ma’am. So, my next question is: could you please explain what you understand as some basic components of insurgent constitutionalism? Secondly, you mentioned Dr. Ambedkar and you also mentioned how it takes time for dissent to become the norm. I think that a very central part of his dissent was his constitutional proposal ‘States and Minorities’.[4] He wrote it on behalf of the All India Scheduled Castes Federation and had outlined a set of comprehensive principles about creating an egalitarian political and economic structure. So, do you think the ideas that emanated from that can be useful tools for insurgent constitutionalism? Is there any path of how does one litigate them or practice them in your ‘Constitution as Commons’?

Prof. (Dr.) Kannabiran: Yes, ‘States and Minorities’ is a fantastic text and an extremely insurgent text because it’s spanning the entire field from social boycott to political representation to economic exploitation. And, you know, it’s not just one piece that he’s addressing. He’s talking about an entire political economy of constitutionalism that will make India the country that he wanted it to be. And we know, bit by bit, each of these ideas has derailed as we have come along and no amount of warning that this derailing will have almost irreversible effects on the understanding of the Constitution by officers of the court of the future generations seem to have had much effect.

But now we are at that point where we are down to ground zero. So from here, how do we start building it back, brick by brick? And that’s basically what we need to do. We need to go back to the basics. We have by now a lot of work, of course, on B.R. Ambedkar. It’s extremely insurgent. We also have people like Maulana Azad. And I do think that this is a useful point for us to start rebuilding a public education on the Constitution and which way we need to take it, because there is no better space than a space that has defeated the Constitution to begin to re-examine the structure of it and set in place a better structure that is not just a formula like the ‘Basic Structure’ of the Constitution but the bare essentials of the Constitution. How do we go back to that? Not in terms of a black letter constitutional law but in terms of its spirit and the multitudinous ways in which it affirms the inherent right to dignity. How do we understand dignity? How do we layer it in order to make our comprehension of the different pieces of that inherent right specific to social location? Yeah, it needs to be calibrated. We have to account for diversity and pluralism.

Above it all, we have to account for justice and it has to be a public education. I don’t think we need to address courts because courts are addressing themselves. We are in a crisis mode. So we are in one crisis case after another; chasing one arrest after another. So, we are very much in crisis mode in courts. But despite that, I think it’s also important to embark on a large, broad-based public education on the Constitution itself and the history of the Constitution. That is different from what we have been taught in law schools.

Prannv: Thank you so much, ma’am. That’s a very important point. And I think it’s very important to also understand the nature of the crisis that we’re facing in the courts. And that is where I would like to seek your insights. We have seen a lot of recent judicial decisions: the 100% ST reservation in Andhra Pradesh, the dilution of the SC/ST Prevention of Atrocities Act, the decision to permit sub-classification. And then we have also seen decisions like Navtej Johar v. Union of India[5] in which we saw an enunciation of judicial duty to be empathetic towards social minorities. We also saw K.S. Puttaswamy v. Union of India[6] in which the rights of a citizen against unreasonable state interference were affirmed, while principles of privacy and dignity were foregrounded. Ultimately, how do you see the performance of the judiciary? And moreover, how do you see the Supreme Court’s role in minority rights protection? Do judges need to have empathy? How do you think judges can become more trained to be empathetic towards the litigants who belong to persecuted socio-political minority groups? And how can this inform a better practice in general?

Prof. (Dr.) Kannabiran: There are actually several questions. I’ll take two of them. One you did mention is what was called 100% reservations. I have actually resisted that description in the judgement because it’s not in fact 100% reservation at all. It is protection of public employment for STs. I’ve been working with Adivasi communities in A.P. on this specific area of school education. This decision has its basis and its background in the fact that there is a large scale stigmatisation of Adivasi children in schools, which is the biggest barrier to school retention rates for Adivasi children. And the only way in which children could be retained in schools are the only way in which parents were willing to keep children in schools, that is if they were assured a certain measure of understanding and they were assured of a certain measure of security, especially for girl children from Adivasi communities. There is a question of a trust deficit with non-tribal teachers unfortunately. The decision to ensure that schools in the specified areas had only Adivasi teachers was a decision that was based on empirical investigations of what might improve school retention. Now, that is not 100% reservation. That is what comes under special protections. The way I see it now is that the judgement really renamed the problem and therefore disabled the protection. That for me is unacceptable, at the risk of contempt.

Now, you talked about sub-classification. I wouldn’t put sub-classification in the same bracket as the 100% reservation case because we must remember that there was a huge movement in in the former state of united Andhra Pradesh for sub-categorization of the ST and SC communities so that the more marginalised people get better benefit from reservations. This was also based on an empirical demonstration that, when left unclassified, vulnerable communities are unevenly represented within reservations. That is a problem that you will have across the board. There are some tribes that may be dominant in reservation, some not. There are some who don’t even get past high school, such as the Chenchu I did a whole programme with our diversity lawyers but there were no Chenchu individuals, not because they didn’t study law but because they didn’t get past high school. So you do have a very uneven representation.

For instance, in the former state of united A.P., you had a preponderance of Mala over Madiga, There was the Madiga reservation struggle led by Krishna Madiga. That was a case where my father appeared. I have actually interacted with a number of people who were in support of reservations but were sceptical – very, very progressive people committed to an anti-caste society but still a little circumspect about whether there should be a sub-classification in the larger interests of an anti-caste framework. These are issues that need democratic deliberation. I think that we need to treat social groups as not internally homogenous and we must allow for a discussion, deliberation and a change but we must not allow for a hegemonic dominant majority and stamping down of claims.

On whether judges need training, I think what we need is a constitutional conscience and that can’t come with training. It has to be in the heart, it has to be in the mind. For instance, during the Communist movements, judges stayed true to the Constitution. I could be a communist and still be set at liberty by a judge who had differing political beliefs because that judge swore fealty to the Constitution. Another thing that used to be non-negotiable was the independence of the judiciary. In many ways, Puttaswamy was a public apology for the Supreme Court’s judgement in ADM Jabalpur.[7] And so now, basically, my own argument is that forget about what the Supreme Court does. In case after case after case, what we have is this nine judge bench decision that has said that dissent and other citizens’ claim to fundamental rights, even under conditions of emergency, are completely within the reach of the Constitution and that’s enough. That is the claim that we have to keep pushing back before the court because we must remember that Puttaswamy didn’t actually happen in a vacuum – we had human rights groups and civil liberties groups incessantly petitioning courts on the question of liberty for 40 years. In a sense, we must remember that what you are calling the “education or training of judges” need not happen in the lifetime of the judges; it happens in the lifetime of courts, and there will be a generation of judges who will learn differently from Puttaswamy than courts do at this time.

Prannv: If I may approach you more on that. I’m slightly circumspect about those judgments being the conscience keepers of the court, especially because right after those judgments, we saw the court reverse them de facto. I think beyond the constitutional conscience, what we might have to look at the structure of the court itself or who mans the court.

Now, if you look at the cases under the Prevention of Atrocities Act, you see that the court is quashing FIRs after FIRs despite no investigation having taken place. Then it has made certain observations like the people make false complaints or if a discrimination was not only on the point of caste, then it was not discrimination per se. So, how does one look for relief from a judiciary that is necessarily elite and which does not have a lived experience that is similar to the marginalised litigant in a particular case? Isn’t there a real need to also ask questions of judicial diversity and representation?

Prof. (Dr.) Kannabiran: Undoubtedly there’s a question to be asked about judicial diversity and representation but that is a question that hasn’t been resolved. For seven decades, the judiciary has always been excessively elite. It’s not like at any point in history, the judiciary has been drawn from marginalised communities. So in that sense, it hasn’t changed. And yet the judiciary has delivered differently at different times. I wouldn’t confuse the later decisions of the court with the decision of the court in Puttaswamy. Similarly, I wouldn’t confuse Justice Khanna’s dissent in the ADM Jabalpur case with the actual judgement itself.

I think that these are two separate things when I say that the Puttaswamy decision could be the conscience keeper of the court. Please do note that I’m saying that because that is a decision this court has delivered in upholding liberties. I hope that there isn’t such an instantaneous amnesia when it comes to the brilliance of the courts because it is a decision that will be remembered for a very long time for the possibilities that it holds. So, I don’t think we can confuse that with the later decisions. The later decisions have distorted and forged constitutional morality into public morality. That has happened right through the history of the courts and it’s a struggle with each case, with each generation, with each decision to defeat the majoritarian viewpoint. We are not always successful, but we must hold on to the slim victories that we have. There is an instantaneous amnesia about the revolutionary possibilities of Puttaswamy, but that instantaneous amnesia doesn’t necessarily negate the fact of judgement itself. That decision is there and will be there for posterity.

Prannv: Thank you for your answer, ma’am. That clarifies a lot of things. Now I want to go to a specific question on the implementation of the Atrocities Act and the jurisprudence around it, especially in the context of Ambedkar’s classic document ‘States and Minorities’, which talks about all kinds of atrocity – social or economic or political atrocity. He seeks a very huge new deal for the depressed classes in terms of institutional structures and safeguards. We have got the Atrocities Act, but how do you evaluate its implementation and its percolation to the ground level and how can it be relevant guarantee for non-discrimination in an egalitarian public sphere?

Prof. (Dr.) Kannabiran: The existence of a law like that is itself as a guarantee. The enactment of the Prevention of Atrocities Act[8] was a major victory; particularly the definition of ‘atrocities’. Then we had an expansion of the definition of ‘atrocities’ that included multiple other components. I think that the insurgent possibilities of the Constitution are brought about through legislation sometimes. There is also the PESA Act[9] as an example. So, we do have the Prevention of Atrocities Act which is sometimes observed more in the default or in very formulaic ways, but that doesn’t take away from the process and the possibilities it holds. Furthermore, with that Act, we are confronted with a problem of people – whether lawyers or judges are able to distance themselves from their own social location in order to deliver justice-based jurisprudence on the Prevention of Atrocities Act in relation to the Constitution, particularly Article 17. Article 17 was, kind of, resurrected by the Supreme Court in the Sabarimala case, but I don’t see it resurrected in cases related to Scheduled Castes and Scheduled Tribes. So, there is a displaced jurisprudence on Article 17. Nevertheless, Article 17 is extremely critical to our understanding of the Prevention of Atrocities Act.

Thus the problem with the Prevention of Atrocities Act is whether the courts or law enforcement can completely disassociate themselves from their own social locations. The challenge is really before the court to ask itself whether it’s deciding a case as an aggrieved party and deciding it in favour of the victim-survivor, even if their own scripted status is closer to the perpetrators. The power and influence of caste is omnipresent. You may profess to not subscribe to the notion of caste, but your subscription to that millennia old order is always there. Now, if you go on the on the starting premise that these people file false cases, then you’ve lost the plot as a judge because you’ve allowed public morality to trump constitutional morality. Therefore, the challenge before the court is to distance itself from caste.

I remember, for instance, the cases around the massacre of Dalits in Tsundur, A.P. in 1991. A good friend of mine, who passed away 8-10 years ago, was a Special Public Prosecutor for that case. It very clear was that this was a case involving a larger conspiracy. There was a meeting, a discussion and strategizing. There was strategizing related to the timing of the massacre and secret communications; a crowd of dominant caste individuals had acted in concert with each other. So, the conspiracy is definitely there. However, even though the accused were convicted by the trial court in Tsundur, the offence of conspiracy was held not to be made out. The courts were stuck in the colonial-era understanding of formulation of conspiracy where there should be a secret meeting of minds; probably the court was looking for secret messages sent through pigeons or what not. Now, what we find is that where it concerns structural violence, particularly violence against minorities, Dalits and Adivasis, there is no need for a secret meeting of minds; the conspiracy is open, it is brazen, it is declared in full daylight, everybody is a part of it. So, unless we are able to the rethink the basis of what we have learned on interpreting offences, or interpreting structural violence, or interpreting the way in which discrimination works in India, we will never be able to make headway in securing minority rights. It’s not just a question of implementation. It’s very difficult to remove yourself from your social station, you know.

Prannv: Thank you so much for that. I think this understanding of structural violence and of judges to be at guard in the case is very important. And this brings me to my next question about the whole debate around proposed communal violence bill as well as the anti-mob lynching laws. How do you think the protection against these violent acts should be expanded upon? Furthermore, what is your opinion about the exclusion of non-Hindu communities from the legal definition of ‘Scheduled Castes’ and ‘Scheduled Tribes’? Do you think that is a loophole in our legal framework?

Prof. (Dr.) Kannabiran: You don’t need a special legislation in the case of communal violence. I know that we have gone through a long process of discussion about this, especially after Gujarat 2002, regarding a Communal Violence Bill. Moving to the second point, you know that conversion to another religion bars you from seeking protection as a Scheduled Caste individual; you fall into one of the OBC or BC categories, as was the case in the former united Andhra Pradesh. However, in case of the Atrocities Act, I don’t think this to be a major problem in all cases. For instance, in Tsundur, the massacre victims were all practising Christians. This question as to whether they qualified for protection under the Prevention of Atrocities Act did come up and the court ruled in their favour. So, the case was tried under the Prevention of Atrocities Act. The problem to me is not whether they belong to another religion and aren’t getting protection for that reason. My minimum requirements are two: firstly, you have a Prevention of Atrocities Act, so maximise your protections under that Act and then let us, you know, think of who else can get protected. How can we broaden the scope of protections to include the largest number of people who might be victimised by this? Secondly, if you follow the Criminal Procedure Code[10] where there has been a case of mass violence or communal violence, law enforcement will be able to prosecute effectively without the need for a separate legislation. We don’t have specific legislation for communal violence, but we do have the Code of Criminal Procedure with its various powers and protections. So, the question is are we actually investigating in accordance with the CrPC? Look at what’s happening with criminal investigations today; law enforcement is behaving as though the CrPC doesn’t exist. I think that if you simply followed the CrPC in letter and spirit, we’re going to be okay.

Now, as for the lack of implementation question: that issue doesn’t have anything to do with paucity of good legislation. I think that’s a slippery slope for us to go on because then all our energies are just going to be spent asking for newer and newer and newer legislations to cover newer and newer offences. I think our efforts should be to force accountability on the states, law enforcement agencies, ensure investigations are fair and just and the like. We’ve seen problematic things happening again and again: we saw it in the Hathras case, in the custodial deaths case of Jayaraj and Benniks, and many more. We saw how the Telangana Police dealt with the accused in the Disha gang-rape case. My point is that we need to organise and challenge and insist on a rule-book investigation and prosecution. The entire criminal justice system is failing because of a collapse of rule-book investigations.

Prannv: Ma’am, all this shows that the legal protections that citizens of India are supposedly afforded by the Constitution and traditional legal process are not being realised on the ground. I think this failure of the criminal justice system has bred a deep-seated cynicism amongst the people. This is perhaps best illustrated by how certain sections of the citizenry don’t look to the Supreme Court as the guardian of their rights anymore and are hesitant to approach it because they believe that there is a possibility that the outcome would make their situation even more precarious. I think one example of that is the farmers’ agitation case in which the Supreme Court, on the basis of certain PILs, took up the matter and then impleaded the farmers’ unions. It then proceeded to constitute a committee and stayed the laws for a while. A very interesting thing I observed was that the farmers’ unions did not want the Supreme Court to interfere; they were far more comfortable dealing with the Central Government and Parliament. How do you view this ‘legal estrangement’[11] of sorts?

Prof. (Dr.) Kannabiran: I don’t think you can bunch case involving civil liberties with something like the farmers’ protests. These are two completely different cases. There are cases that require a political resolution and I think the farmers issue was not an issue that the Supreme Court needed to interfere with at all; it is an issue that requires a political resolution. The farmers have been very clear that they simply demand a repeal of the three laws, nothing less. Thus, it is right to insist that a matter of politics cannot be resolved by the Supreme Court; it must be resolved through the political process. The Supreme Court is not a substitute for the duly-elected Government and Parliament of this country. However, if I am to face arrest tomorrow, I can’t go and sit in dharna somewhere; I first have to make arrangements for my bail or for legal representation and that only the courts can help with. In matters of custody, for instance, we don’t have the luxury of saying “No, we don’t want to go to court.” And neither do we have the luxury of trying to indulge in forum-shopping. Depending on the problem of custody before us, we have a set number of options and we must follow those options. And it doesn’t matter if the judge is not favourably inclined; you have to go up. Now, if you don’t get justice in the trial court, you must go to the High Court, then to the Supreme Court; you must exhaust all your options for appeal and hope that a constitutional empathy and constitutional morality will prevail somewhere along the judicial ladder.

Prannv: So, in this case what we saw was that the constitutionality was indeed challenged by certain governments and the court did not hear those cases. So, I guess there is certainly something to be said on this. But farmers have been reluctant to approach the Supreme Court not because they don’t wish to litigate the constitutionality of the laws but because they are apprehensive of a defeat of their claims to civil liberties there. What are your thoughts on that?

Prof. (Dr.) Kannabiran: You know, governments going to the court is different from movements going to court. Movements will choose the opportune political moment when they want to approach the court; it is a strategic decision and we have to understand that these socio-political movements are equipped to make those strategic decisions. Courts may sometimes side with these movements or sometimes with the governments. Sometimes, we may not like those decisions. However, I would still hold on to my earlier point that where the farmers are concerned, it is a matter of politics, a matter of democratic politics to be precise. It must be resolved through political deliberation. It can’t be resolved through the Prime Minister’s Mann Ki Baat monologue or the Supreme Court. The Government must engage with the farmers’ movement and there’s no way you can defeat that fundamental engagement with the democratic and political process with threats of incarceration, or specious criminal cases or what have you because the minute you get into a movement, there is a sense of fearlessness. You know, you don’t get into a movement to be meek, you get into a movement because you want to see results from your movement. I think that is a point about the farmers’ movement that we need to understand and appreciate.

Now, on whether others go to court or not, I think I would just repeat my point, which is that if it is a matter of personal liberty, you have no option but to go to court. You have no option but to take the risk. You really don’t have the option or the luxury of saying “I don’t want to take the risk.” For example, look at the civil liberties cases involving Kashmir. It’s not that you had a guarantee that you were going to get a decision in your favour, but you just kept going back again and again and again. Liberty is that kind of thing. You just have to keep pushing. And, by the way, pushing has its own rewards. It demonstrates a tenacity which is not lost on the courts. So, don’t imagine that just because they are not deciding in your favour, your tenacity is lost on them. It’s not, they can see it. They may not be very happy with it, but they can see it and they can comprehend it for what it is.

Prannv: The concluding question I want to ask is about the ‘Constitution as Commons’, a concept that you have developed upon in the paper that you’ve written recently. So, could you just explain to us the relevance of this conception of the Constitution in the current moment? 

Prof. (Dr.) Kannabiran: I’ve been in fact, you know, thinking about how we might broaden the shared understanding of the Constitution at a time when the constitutional courts are not really with us in our struggles in the matters of liberty and dignity. We saw what happened when the migrant workers found themselves helpless during the lockdown. We also saw, for instance, what happened in Jammu & Kashmir with the detentions and with the Forest Rights Act eviction controversy.[12] So, we are able to see several moves within the courts and in relation to the courts that were completely contrary to what our understanding of the constitutional conscience is. There was the entire CAA-NRC controversy as well. However, this was also the time when we witnessed the public recitation of the preamble. Our preamble became an anthem for collective resistance. The Constitution was a unifying thread as a representative of our Indian social compact. And this is what will hold us together. Around that time, I re-read a judgement by Justice Sudarshan Reddy on a company law matter.[13] In that judgement, he spoke about what he called the “triadic ethical framework of the Constitution.” You know, the preamble, the fundamental rights and the directive principles of state policy and talked about the state’s obligations. The state’ obligations under Part Four are non-negotiable.

Around the time I was pondering over all this, I said to myself, “Okay, possibly one way that we can think about the Constitution is to think about the Constitution as a commons.” We have literature on the commons, you know, in economics and environment and so on and so forth. But how would we approach an understanding of the ‘Constitution as Commons’? Because that conception fundamentally removes any proprietorial right that courts may feel they have over the Constitution. It frees it from the control of the courts and puts it at the disposal of the citizenry to share, to read, to deliberate on and to act upon. Never mind that the acting upon it might actually invite repressive state action as we have seen. But freedom’s always been extremely fraught and extremely difficult to acquire and sustain. It’s never ever been easy. Now, this conception of the Constitution is not a new idea in itself; for instance, if you look at the emergency-era cases, you see political dissenters arguing before courts that the Constitution equally belongs to them and that it is the courts’ duty to protect their claim over the Constitution. The ‘Constitution as Commons’ is our claim to a collective identity and to a collective space for deliberation.

Prannv: Thank you so much, ma’am that is really fascinating! I think this insight gives a lot of food for thought to our listeners and readers as well. And I hope discussions like these can play a small part taking us forward to that heaven of freedom, liberty, equality and fraternity that all our founders had thought of. Thank you so much, ma’am, for explaining these concepts and for engaging with us in this discussion.

Prof. (Dr.) Kannabiran: Thank you so much, Prannv and Shreyas!

[1] Kalpana Kannabiran, Tools of Justice: Non-discrimination and the Indian Constitution (Taylor & Francis 2013)

[2] Shaunna Rodrigues, ‘Abul Kalam Azad and the Right to an Islamic Justification of the Indian Constitution’ in Anupama Roy and Michael Becker (eds.) Dimensions of Constitutional Democracy (Springer, 2020) 125.

[3] Kalpana Kannabiran, ‘Constitution-As-Commons: Notes on Decolonising Citizenship in India’ (2021) 120 (1) South Atlantic Quarterly 232

[4] B R Ambedkar, ‘States and Minorities: What are Their Rights and How to Secure Them in the Constitution of Free India’ in Vasant Moon (ed), Dr. Babasaheb Ambedkar: Writings and Speeches (1st volume, Dr. Ambedkar Foundation 2014) 381

[5] Navtej Singh Johar v. Union of India (2018) 10 SCC 1 (Supreme Court of India)

[6] K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 (Supreme Court of India)

[7] Additional District Magistrate, Jabalpur  v. S.S. Shukla (1976) 2 SCC 521 (Supreme Court of India)

[8] The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

[9] The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996

[10] The Code of Criminal Procedure, 1973

[11] Monica Bell, ‘Police Reform and the Dismantling of Legal Estrangement’ (2017) 126 (7) The Yale Law Journal 2054

[12] Kalpana Kannabiran, ‘The Shifting Sands of Citizenship: Dispossessions, Constitutional Ruptures and Borderlands’ (2020) 69 (3) Sociological Bulletin 339

[13] Reliance Natural Resources Ltd. v. Reliance Industries Ltd. (2010) 7 SCC 1 (Supreme Court of India)

Shreyas Sinha (1st Year, B.A. LL. B., National Law School of India University) provided excellent research and editorial assistance for this interview.

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