The Foreign and the Indigenous in the Indian Constitution: Constitution Day talk by Arun Thiruvengadam

December 2, 2015

While drafting the Indian Constitution, members of the constituent assembly often found themselves at a buffet on which a diverse spread of constitutional designs from foreign jurisdictions was laid out. The assembly carefully scrutinized what was on offer and liberally picked up what it thought was best for the Indian Constitution. The result of this alleged constitutional gluttony seems apparent on a cursory glance at the Indian Constitution – India’s parliamentary system was borrowed from the United Kingdom, federalism from Canada, the Bill of Rights from the United States, Directive Principles from Ireland, Fundamental Duties from U.S.S.R, the idea of a ‘concurrent list’ from Australia and so on. So questions of the “Is this even an ‘Indian’ Constitution?” variety need to be carefully thought of. If national identity is a bone of contention and controversy, it is not surprising that constitutional identity would also be called into question.


On the 26th of November 2015, Constitution Day, the Centre for Law and Policy Research, Bangalore, decided to use the occasion to interrogate and clarify the above-mentioned tensions surrounding the Indian Constitution. In his talk titled ‘Anxieties About The Foreign And The Indigenous In India’s Constitutional Tradition’, Arun Thiruvengadam, Associate Professor at the Azim Premji University, attempted to demystify and unravel the prevailing tendency of Indian political actors and others to question the indigenous credentials of the Indian Constitution. Sitharamam Kakarala (Ram), Professor, Azim Premji University, played the role of the respondent.


Arun began by reminding the audience that such debates are not special to India. Countries all over the world have had to grapple with challenges thrown by various groups about the foreign character of their constitutions and that their constitutional texts did not reflect the traditional values of their respective societies. Resisting the temptation of taking a position on the question – Should a constitution be homegrown or borrowed from other cultures? – at the abstract level, Arun advocated an approach of engaging with the question on a case to case basis. Justifying his evasion of answering his self-posed question, Arun put forth examples of how ‘imposed’ or ‘foreign’ constitutions, as well as ‘home grown’ constitutions, have both failed and succeeded in various contexts.


What was useful for the non-legal members of the audience was Arun’s expansion of the scope of the problem of ‘foreignness’ vs ‘indigenous’. As laymen, we tend to think of the issue only with respect to constitution-making and the resulting final constitutional text, Arun, however, opened up another front – constitutional practice and adjudication. Lawyers presenting arguments and judges deciding cases often make use of foreign constitutional doctrines and cases. This is another sphere where the tensions seem to play out. He cited the case of America, where in the late 80s and early 90s, judges of the Supreme Court detested citations from foreign jurisdictions. Arun took aim at the popular notion that exists in America and the world over about the distinct and original nature of the Constitution of America: the federalist papers which contain the aspirations and intellectual back and forth that surrounded the making of the American Constitution, clearly shows the heavy influence of European political thought.


Where does India stand in the realm of constitutional adjudication? The Indian Supreme Court, Arun argues, unlike its American counterpart, seems to be open to foreign influence in its crafting of doctrines and decisions as reflected in myriad cases (a stark exception of this was the Section 377 related Kaushal judgment). He went on to take up the prevailing consensus of the ‘Basic Structure Doctrine’ and ‘Public interest litigation (PIL)’ as being Indian contributions to global constitutional thought. Taking issue with this consensus, he went on to argue that both the Basic Structure Doctrine and the PIL have traces of significant engagement with foreign constitutional law. Ram added an interesting empirical dimension to Arun’s comments, citing a study whose findings suggest that judiciaries in newly formed nations initially tend to cite foreign judgments and doctrines heavily, but with time the citations of foreign case law plateau and then slowly decrease.


Turning his gaze away from constitutional adjudication and back to constitutional history, Arun brought up examples of Panchayati Raj and Personal law provisions of the Indian Constitution and how these exemplify Indian values embedded in the Constitution. Again, he clarified that both these provisions while on the surface seem ‘Indian’, they have nothing to do with ideas of personal laws and panchayats of a bygone ancient Indian era.


Up until this point, it was clear that Arun’s views were based on a certain discomfort with the watertight compartmentalization that the terms ‘indigenous’ and ‘foreign’ connote. This was brought forth when an audience member asked Arun if there was a way of excavating ‘Indian political thought’ and could this be consistent with modern western notions of constitutionalism?’ Arun replied by confessing his inability to identify examples of ‘Indian political thought’. Gandhi’s Hind Swaraj, often taken as being an example of Indian Political thought by scholars and others, Arun added, was heavily based on western political thought, as seen in the bibliography of the book.


Ram in his initial comments to Arun’s talk placed before the house, questions that he felt were central to the issues taken up by Arun – what gets counted as indigenous? And who gets to define the same? In one stroke, Ram demolished any lingering pretensions of engaging with the question of the ‘foreign vs indigenous’ as an apolitical enterprise. This speaks to contemporary instances of political jostling over constitutional identity emerging selectively in certain political contexts.


The most interesting part of the talk for me was when Arun brought up two interesting cases from Japan and New Zealand. Article 9 of the Japanese constitution prohibits Japan from raising an army. This is a remnant of the historical baggage of the Japanese constitution being written and imposed by the United States after the Second World War. When Abe’s government decided to get rid of this article of the Constitution, a significant strand of the response to Abe’s proposal was very surprising. Many people in Japan did not want the article to be gotten rid of. Arun expressed his bewilderment at this – Don’t the Japanese know that getting rid of the article was actually in the national interest of Japan? And also, that Article 9 was the starkest example of the foreign/imposed nature of the Japanese constitution? Apparently, when Arun expressed these thoughts to the Japanese, he was accused of not understanding Japanese constitutional culture! The other example, New Zealand, is also surprising. When a proposal was made to change the New Zealand flag in order to get rid of its colonial baggage (the flag has a Union Jack), veterans of New Zealand argued against this, citing the sacrifices they had made for the flag.


The above examples for me are both tantalizing and require further investigation. Why is it that people are reluctant to let go of vestiges of colonial or foreign influences even when to do so would technically be in their national interest? Even today, one finds that military bands in India continue to play colonial British tunes. After independence, why have these not been discarded? Is it the case that with time, a particular culture co-opts foreign influences such that it treats them as being ‘indigenous’? What implications does this have on the debate around the ‘indigenous’ vs. ‘foreign’ while thinking about the Indian Constitution and other constitutions? Ram seemed to provide a clue when he cited scholarship whose main thesis was that the very act of representing something as ‘tradition’ was a modern way of thinking about the world. If this is true, this could explain why ‘indigenous’ and ‘foreign’ are categories that seem to limit our understanding of questions of identity and more so the problem of constitutional identity.


The Indian constitution, therefore, as Arun closed the talk, may very well have borrowed provisions heavily from foreign constitutions, but these provisions have been tinkered with and molded in a manner that seeks to take into account Indian particularities. Secularism in the West, which was confined to the idea of merely separating church and state, takes on a different form in the Constitution of India. Part IV of the Indian Constitution – Directive Principles of State Policy – a device which was borrowed from the Irish Constitution, plays a far greater role in Indian constitutionalism than was envisaged in Ireland.


The Indian constitution used devices of liberal constitutional thought but rejected the liberal idea that constitutions had to perform the sole function of limiting state power. The Indian constitution had to empower the state to enter into the realm of Indian society and transform it by eradicating deeply embedded economic, political and social hierarchies. Whether the project of social transformation has succeeded or failed is another question. But the fact that the framers of the Indian Constitution attempted to use it as a means of revolutionizing Indian society – which no country at that time had done – is something to be proud of. So even if we borrowed various provisions from different jurisdictions and made them our own, we must agree with what the ‘foreign’ saint of Indian constitutional history – Granville Austin – says about Indians successfully crafting a constitution for themselves – ‘the credit goes to the Indians’. Praise, whether emanating from the ‘foreign’ or the ‘domestic’, is something I am sure, Indians can agree to accept without any controversy.