2015年6月29日星期一

India's Search for Progressive Law

Sandipto Dasgupta, Columbia PhD of political science, gave a thought-provoking and lively talk on the Indian Constitution at my department this month. It was part of his long-term book project Legalizing the Revolution. He uses the important concept that critiques how legalism imposes linguistic constraints on the outcome, and thus makes law always backward-looking: precedence necessitates future decisions. Yet he argues that the Indian Constitution has a potential to become a more revolutionary document than other existing ones. It embodies transformative constitutionalism, termed by K. Klare in a 1998 essay, characterized as legally-driven empowerment and change. In South Africa, for example, readings of the Constitution focuses on issues such as "multiculturalism, close attention to gender and sexual identity, emphasis on participation and governmental transparency, environmentalism and the extension of democratic credentials into the ‘private sphere’."They are in contrast with contractual constitutionalism like the American and French Constitution, which has checks and balances as well as judicial review that prevents it from later turmoil. 

Land reform is one of the most important example regarding the Indian constitution's progressive status and interpretation. Dasgupta argues that this precedent made the later judicial activism through public interest litigation regarding environmental issues in the 1980s possible. Land reform was accepted as an important process to be implemented by the Congress Party when they come to power: on the one hand for the purpose of creative an equitable society in response to peasant movements, and on the other hand, for removing less productive feudal structures as part of the Modernization project.

Congress leaders also agreed that it should be compensative land reform, in which landowners would be compensated. Lawyers faced the problem of how to use it to implement the compensation: How much should the law compensate for land reform? The process is complex and one cannot tie it to one term because contexts vary. There was a consensus among the legal writers that there should be no qualifiers for “compensation” and that the local judiciary representatives should decide. There should have some coherent principle followed throughout the process, but it does not have to be good or just.

One example Dasgupta provided was the Bela Banerjee case. Her land was taken to resettle Partition refugees in Bengal in 1950. Yet Mrs. Banerjee only got compensation from the 1946 price, which has increased since. The Supreme Court declared that this act was unconstitutional because the word “compensation” implies just equivalence and should correspond with market value. I could not help but notice how this process was so much more calculated and technical than the impromptu tribunals in China's land reform that not only took away landowners land, but also in some cases executed them.

Dasgupta notes that this reform was not based on the notion that everyone has natural rights to property. My issue with this framework is the lack of foundation. If rights, such as right to land, are not absolute, the interpretation of them can go in many directions. The interpretive law can fall back on "Hindu" or "Islamic" custom like the British rulers, or it could be used for a progressive goal like land reform. This is the classic problem regarding constitutionalism in the U.S.: Interpretation v. Original Intent. I am not familiar with common law and the British probably have a different understanding based on their law; for example, while the U.S. Supreme Court may legalize gay marriage under the 14th amendment, the British law could have the same outcome with different legal reasoning. Yet I still think that one should have to have a clearer idea of what the ideology is when arguing for a progressive Indian constitution. 

Jawaharlal Nehru thought that writing better text could could help the political mandate of post-independence social justice and bypass conservative roadblocks, yet both Nehru and Dasgupta notes that the class status of lawyers was another issue new legal language could not bypass. Dasgupta quotes Nehru, the Indian constitution "has been purloined by lawyers." The parliament wanted to use legalistic language to mediate the process, but the parliament also has to cede the interpretation powers to lawyers or expert committees. Dasgupta is acutely aware of the question of interpretation under constitutionalism, and I look forward to reading analyses of central themes in Indian legal interpretation, perhaps with more case studies.

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