Thursday, November 17, 2005

Rajeev Dhavan on the Constitutional Crisis in Nepal and on Constitutonalism more generally

Today’s Telegraph carries a column by Rajeev Dhavan on the aforementioned topic. I am convinced that Dhavan is one of the most under-appreciated legal scholars in India. Most people recognize him from his regular (though somewhat less so in the recent past) newspaper columns and from his comments to the press about new judgments issued by the Supreme Court. Fewer people have a sense of the contributions he made to the scholarly study of the law in his earlier incarnation as an academic. I for one regret that his move to the Supreme Court bar resulted in depriving Indian legal scholarship of one of its most meticulous and astute scholars (though Dhavan continues to engage in scholarly works, it is clear that his projects in recent years have been of limited magnitude).

In recent weeks, I have had occasion to revisit his academic writings, and they are awe-inspiring. His 1977 work, 'The Supreme Court of India: A Socio-legal Critique of its Juristic Techniques (NM Tripathi: 1977)', remains, two decades later, one of the most definitive studies of the Indian Supreme Court, its judges, and the body of jurisprudence it has created. Based on his PhD dissertation submitted to the University of London, the book is one of the few academic works which tries to contextualize Indian judges, and is a rare example of socio-legal/law and society scholarship in Indian public law. Through the 1970s and the 1980s, Dhavan undertook many studies documenting various aspects of the working of the Indian judiciary, with a particular focus on its arrears and strategies developed to overcome systemic problems. He has also authored comprehensive studies of PIL litigation in India: its origins, foundational debates about the phenomenon between influential lawyers and judges, how it developed over time, etc (Sadly, some of these works are less accessible as they seem to have been published as monographs).

Dhavan has also closely followed the development of Indian legal research and scholarship over time. His masterly introduction to Marc Galanter’s ‘Law and Modern Society in India (OUP: 1989)’ provides a historical survey of works on Indian law dating from the colonial era till the late 1980s, and analyses how legal thought in India changed over different periods of time(The thirty-page endnotes section contains a comprehensive listing of the most significant scholarship on various aspects of Indian law). He comments acidly on the hold of the ‘black letter law’ tradition over Indian legal writing (as displayed in judgments and academic scholarship), and offers succinct, devestating summations of the attitudes of Indian judges, lawyers, politicians and law teachers towards the law. He also analyses the contributions of other Indian academics, as well as of those foreign scholars who have written on Indian law. His journal articles on the Indian Law Institute (with which he has been involved for a very long period of time) and the traffic of ideas from America to India provide important historical information as well as trenchant criticism of aspects which he feels have stunted the development of Indian legal research and scholarship. In this short post, I cannot do justice to the many articles on a variety of subjects that he has published in various journals, including his regular articles in the prestigious Journal of the Indian Law Institute. I hope this brief survey of Dhavan’s monumental contributions to Indian scholarly literature will inspire others to revisit his work.

Reverting to the article in today’s Telegraph, one finds some typical signs of Dhavan’s approach, where he analyses a specific contemporary issue by putting it into historical context and by locating it within a larger sphere of intellectual thought. Here is an extract from the article:

A lot of constitutions fail — either partly or wholly. In fact, in the last 60 years, very few constitutions have remained unscathed. But this does not mean that constitutionalism fails. There are three possible results. The first is that constitutional failure signifies a revolutionary change and creates a void to start afresh. This void theory was supported by Pakistan’s courts in Dosso’s case in 1958. The second approach is to recognize constitutional failure but to limit the executive power to exercise power consistent with necessity. This was the improved view of the Pakistani courts in Asma Jalani (1969) and other cases. There are also intermediate formulations from Ghana (1966) and Nigeria (1969).

But all these approaches create a “usurpers’ jurisprudence”. In the case of Rhodesia, the British Privy Council, pronouncing from a distance, called Ian Smith’s regime unconstitutional in 1969. But it could not enforce its orders anywhere — except in England. We must, therefore, turn to the third path of what I call “constitutional legality”. When a constitution fails, we must turn to the principles underlying the constitution to devise a system of constitutional governance. This is precisely what the amending power of the Nepal constitution underlines in Article 116 by referring to the spirit of the constitution.

In a talk to the Nepalese Bar Association on November 6, 2005, I compared a modern constitution with its multiple protections to the famous military formation of a chakravyuha in the Indian epic the Mahabharata, where one wall rises to the defence when the preceding one falls. So, in the Nepal crisis, the king has been trying to take over, threaten, manipulate, and overawe the other protecting walls of the constitution, including the corruption commission, the constitutional council, the human rights commission, the media, NGOs and so on. But the judiciary must stand up to the situation. To restore the constitution (a) a cabinet must advise the king, (b) all laws must conform to the bill of rights, (c) new laws must not be promulgated except when necessary, (d) elections must be announced (e) ordinances in excess of provisions must be limited or struck down, (f) a political dialogue with all, including the Maoists, must be sustained even in the face of American pressure that the political parties must not ally with Maoists, (g) the judiciary must not be compromised, (h) an independent NHRC must be reconstituted, (i) there can be no arbitrary detention and (j) the media and NGOs must be protected. The king must respect the principles underlying the constitution from which he claims to draw his power. All these form the principles of constitutional legality in the interregnum. They should be recognized and implemented by the supreme court as drawn from the constitution itself (Article 116 read with the preamble).

I hope Dr. Dhavan will continue to engage with contemporary legal issues in public fora, allowing us to have the benefit of his vast learning and astute insights.

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