"Postcolonial Legality: A Postscript from India by Upendra Baxi"

Post-colonialism is a complex landscape riddled with conflicting ideas, particularly when confronted by unfamiliar guests like constitutionalism and human rights. Constitutionalism, encompassing governance structures, power legitimization, and notions of justice and rights, becomes a battleground for different perspectives on development and autonomy, presenting narratives of authority and resistance.

While commonly associated with written constitutions, constitutionalism extends beyond the text itself, challenging the idea of writtenness in two significant ways. Firstly, unwritten conventions and practices resist explicit codification, forming an unwritten constitution that often overshadows the written one. This leads to situations like "constitutions without constitutionalism." For example, executive war powers may override explicit constitutional constraints, or constitutional dictatorships legitimize power through written devices while operating outside the specified constraints.

Modern constitutionalism's history exposes growing imbalances between domination and resistance, especially during colonialism's heyday in Europe. Postcolonial societies' constitutionalism highlights the limitations and criticisms of liberal thought's achievements.

During colonial rule, imperial powers focused solely on governance, disregarding fundamental rights for the people. Challenges to this authority were deemed acts of rebellion and betrayal. The concept of "justice" and "development" in colonial legal systems served imperial domination, being paternalistic tools. While early forms of constitutionalism emerged during colonial insurgency, they were mainly for governance, not safeguarding people's rights.

It is crucial to differentiate constitutional forms and ideals from colonialism as they were always separate entities. The enactment of a constitution marked a significant historical shift away from colonial influences.

Yet, colonial legal cultures did impact certain aspects of constitutions, with civil law and common law traditions influencing governance structures. The context of the Cold War also shaped Third World constitution-making practices, leading to significant differences between liberal bourgeois and revolutionary socialist constitutionalism:

***Liberal constitutionalism emphasized private property rights, while socialist constitutionalism celebrated state ownership of all property.

***Political representation in liberal constitutionalism was based on class domination, while socialist constitutionalism focused on representing workers, peasants, and masses through the Party.

***Adjudication in liberal constitutions was relatively independent, while socialist constitutions tied it to the Party and the State, serving a pedagogic role in constructing the new socialist human persona.

***Socialist constitutionalism emphasized citizens' fundamental duties, whereas liberal constitutionalism focused on their fundamental rights.

These distinctions influenced governance structures, with socialist societies exhibiting gulags and rule-of-law societies dealing with repression such as McCarthyism, racism, and patriarchy.

The rivalry between superpowers during the Cold War militarized ex-colonial states, impacting human rights in those societies. Both capitalist and socialist imperial hegemonies influenced the context and content of constitutionalism in decolonized nations.

 

POST COLONIAL CONSTITUTIONALISM

Despite the complex and varied nature of the postcolony, it cannot be seen as a single unified entity with a uniform organizing principle. Instead, it consists of multiple spheres, arenas, and identities. The struggles for decolonization, often involving militant people's movements and colonial state repression, have left their marks on postcolonial constitutions.

Nonetheless, a prominent organizing principle in these constitutions is the concept of natural rights, particularly the right to self-determination, which was first practiced by figures like Mohandas Gandhi and Nelson Mandela. These expressions of natural rights create new institutional realities that challenge the existing power structures.

However, the realization of the human right to self-determination was influenced by the diverse patterns of colonization, which have not been adequately theorized. Available accounts point to a wide range of experiences. In some colonies, such as Mozambique, there was complete metropolitan domination, with Portuguese laws and legal officers imposing their authority. On the other hand, colonies like India showed a level of toleration and recognition of indigenous legal traditions, resulting in hybrid legal systems like Anglo-Hindu and Anglo-Muslim law.

Colonial India became a battleground for various elite networks seeking to influence legal reform, leading to the codification of civil and criminal law. This gave rise to a sophisticated legal profession that played a significant role in the nationalist movement and the making of the Indian Constitution.

In the case of "settler colonialism" in parts of Africa, colonial regimes invented governance devices, such as chieftainship, which continue to shape the postcolonial African condition.

Acknowledging the differences and diversities in colonial contexts and struggles for self-determination helps us understand that the term "postcolonial" oversimplifies the complexities. It also serves as a reminder that this term can be used to shape the politics of memory and forgetting, facilitating political mobilization within and across nations.

 

CONTINUTIES

Postcolonial law shows both continuities and ruptures from the colonial era. One significant continuity is the complex interplay of embracing and denying the liberating principle of self-determination. The success of decolonization leads to the establishment of new nation-states, but it also reinforces colonial borders, creating a paradox of "nationalism without nation." Many groups, whose understanding of resistance against colonialism differed from those who assumed power, find themselves marginalized in the new nation-state.

Postcolonial legal systems are caught in the dynamics of repression and insurgency. They inherit and even expand the repressive aspects of colonial laws, especially through security legislation. Suspicion can lead to arrests without proper evidence or judicial scrutiny, resulting in indefinite incarceration and custodial torture. "Disappearances" of detainees are organized, and citizens can be branded as spies under Official Secrets Acts, enabling severe repression.

Despite wielding power, the postcolonial state lives in constant fear, leading it to include provisions in its Constitution for declaring a state of emergency. However, these emergency powers are often abused to suppress political dissent and protect corrupt rulers. This has even resulted in extrajudicial killings, at times taking the form of capital punishment, as exemplified by the case of Ken Saro Wiwa at the turn of the century.

In essence, postcolonial law carries forward some oppressive elements of the colonial era while attempting to navigate the complexities of self-determination and governance in newly formed nation-states.

DISCONTINUITIES

However, there is a significant difference in the constitutional project, which establishes a new way of representing the nation's identity. Constitutions are like moral autobiographies of "new" nations, promising a fresh future while distancing themselves from the colonial past.

Postcolonial constitutions consist of two contradictory types of texts: those related to governance and those focused on justice. The justice-oriented texts, emphasizing human rights and redistribution, are fewer compared to governance texts. Postcolonial legality always involves a contradiction between governance and justice in ways not seen in the original American constitution and many Western counterparts. The post-Soviet or "transitional" constitutionalism is influenced as much, if not more, by Third World traditions than post-bicentennial French and American ones.

Postcolonial legality fosters creativity within the framework of imitation. It involves reproducing governance texts with variations. Even in this process, military constitutionalism, notably in Africa, cruelly exploits the latent antiliberal potential of Western constitutional models. Creativity can be found in the constitutional texts related to human rights and social justice, which highlight contradictions during the transition, not just symbolic rituals.

The thesis that postcolonial constitutions exemplify "catachreis" (a concept-metaphor without any historically adequate referent) denies the ex-colonial subject the ability to form languages of rights and justice. It also ignores the historical specificity of anticolonial struggles, which have led to innovative forms of constitutionalism. Suggesting that either the "classical" genre of postcolonial constitutionalism (e.g., India) or the radically emergent forms (e.g., South Africa, Namibia, or Eritrea) constitute "catachreis" goes against recorded history.

In fact, some of these emergent forms provide inaugural examples in human history of constitution-making without the control of an elective oligarchy but through widespread popular participation, reflecting a logic of government by consent in the foundational endeavor of constitution-making itself.

The contribution of constitutionally authored postcolonial legality lies in the transformation of various norms and doctrines within the Western/Northern constitutional imagination and praxis. We will now examine some aspects of forms of discontinuity.

Notions of human rights

The Indian Constitution has brought about significant changes by extending classical Western rights beyond the state to civil society. It has outlawed practices like "untouchability," forced and bonded labor, and human trafficking. This constitutional development serves as a contemporary example of empowering state action to protect human rights and combat cruelty in civil society.

Furthermore, the Indian Constitution has become a means of empowering marginalized groups like untouchables and indigenous peoples (scheduled castes and scheduled tribes). It reserves seats in Parliament and state legislatures for these groups and mandates quotas in education and state employment for socially and educationally backward classes.

The extension of quotas in the federal services during the 1980s led to major social and political upheavals, including poignant self-immolation protests by young people. The Supreme Court has validated these provisions, setting a 50 percent limit and excluding economically well-off beneficiaries.

Affirmative action programs are prevalent as governance tools and mechanisms for justice. For instance, in Malaysia, the majority of bhoomiputras receive benefits denied to local Chinese and Indian Malaysian citizens. In Sri Lanka, there are efforts to find equitable solutions to end a severe civil war and achieve a balance between the Sinhalese and Tamils, dealing with challenges in severely divided societies.

The politics of affirmative action, based on the doctrine of liberal equality, has led to diverse narratives, inspired by the landmark efforts of the American Supreme Court since Brown v. Board of Education.

State neutrality

Postcolonial constitutionalism has significantly redefined the concept of state neutrality. Constitutions now reflect the idea of promoting collective moral good that the state should uphold. In India, for instance, the state can legitimately regulate matters related to conscience, religion, public health, order, and morality. However, this has led to debates on constitutional secularism, as some devout Indian Muslims, pious Hindus, and Catholics find certain provisions conflicting with their religious beliefs.

To navigate the complexities of a diverse, multi-religious society like India, politics turns to aspirational constitutional principles like the Directive Principles of State Policy and the Charter of Fundamental Duties of Citizens. While not legally enforceable, these principles place critical responsibilities on the legislature and executive.

They create space for discussions on identity, difference, and empowerment in civil society and the state. The fundamental duties include respecting and preserving the ideals of the freedom movement, promoting India's composite culture, fostering a scientific temper, encouraging inquiry and reform, and denouncing practices derogatory to women. These principles derive their legitimacy not from abstract notions of tolerance and dignity but from the Constitution itself.

However, it is important to note that the discourse on fundamental duties is not always friendly to individual rights and has been used to override basic rights in the constitutional experiences of socialist societies and military constitutional dictatorships in the South.

Property relations

Postcolonial constitutionalism has grappled with the redefinition of property relations, a central challenge spanning different generations and diverse national contexts. The bourgeoisie, victorious in nationalist movements, fought for fundamental rights against expropriation to transform agrarian relations. In postcolonial societies, where instant political enfranchisement was granted, significant agrarian movements emerged, advocating for redistribution and changes in property relations.

However, historical context matters, and constitutions in socialist Third World nations differed from those in countries like South Africa or Zimbabwe. The issue of property relations remains contentious, with some entrenched systems based on customary law persisting. Despite variations, certain aspects prevail in comparative postcolonial constitutionalism:

·       Subaltern movements advocating agrarian reforms justify state violence as the rule of law, seen in responses to movements like the Naxalites in India.

·       Worst practices of agrestic serfdom, including debt bondage and exploitation, continue to affect marginalized communities.

·       Violence against untouchables persists, with dominant landowners often immune to legal repercussions.

·       Regulatory capture occurs as special interests influence policymaking and control key institutions, including land revenue, police, judiciary, and the media.

Despite ongoing efforts for equity, postcolonial nations face challenges due to colonial legacies and ineffective governance. Social movements have made strides, but globalization's influence, fueled by foreign investments and multinational capital, poses new threats to agrarian reforms.

The voracious expansion of multinational interests into prime agricultural lands and forests undermines the goals of equitable property relations.

Interpreting postcolonial constitutional texts in the era of globalization requires navigating the tension between local needs and global realities. Constitutions must adapt to address universal concerns while preserving their local context and aspirations.

JUDICIAL ACTIVISM

Judicial activism has become a powerful force in India, contributing to the redemocratization movement. Two notable achievements of judicial activism in India stand out:

The Supreme Court of India declared that Parliament's power to amend the Constitution is subject to judicial review. Certain "essential features" of the Constitution, such as the rule of law, federalism, democracy, and more, cannot be altered. The Court used this doctrine to invalidate several amendments, expanding its role as a "constituent assembly in permanent session." This form of activism has influenced other countries like Pakistan, Bangladesh, and Nepal.

Social action litigation (SAL) has democratized access to the courts, especially the Supreme Court. It involves sending letters to justices, drawing attention to violations of rights endured by disadvantaged and vulnerable sections of society. Justices act upon these letters, broadening the scope of standing (the right to approach courts) and addressing issues like government lawlessness, environmental degradation, gender inequality, corruption, and more. New fundamental rights have been recognized and enforced through SAL, even those not explicitly stated in the Constitution.

While some criticize judicial activism as overstepping its boundaries, SAL has promoted ongoing dialogue between human rights activists and the judiciary, fostering redemocratization in India. Despite challenges and resistance to this approach, SAL has withstood criticisms, continuing to push for social justice and accountability in governance.

 

ENGENDERING CONSTITUTIONALISM

Postcolonial constitutions exhibit significant progress in political gender equality, granting women the right to vote and run for office. South Asian constitutionalism, in particular, has seen women holding high political positions at an unmatched rate. This represents a remarkable achievement, considering that some older constitutions have yet to see a woman head of state.

Beyond women heads of state, the issue of engendering politics runs deeper, addressing the feminization of political party structures and processes. Some constitutions in Latin America, for example, have attempted to reserve seats for women candidates. However, achieving gender equality in civil society, family, and market relations remains a pressing challenge.

Indian judicial activism has shown promise in promoting gender equality by pushing for laws against sexual harassment in workplaces. Nevertheless, serious issues still persist, such as dowry-murder, child sexual abuse, female genital mutilation, nutritional discrimination, and sex trafficking, all demanding strong constitutional responses.

Traditional forms of constitutionalism have been male-centric, but postcolonial constitutionalism challenges patriarchal norms. Women's human rights movements have emerged as powerful agents questioning power structures in both state and society, disrupting the norms established during the First World constitutional era.

 

PATHOLOGY OF POWER

Histories of postcolonial legality reveal distinct pathologies. The rise of military constitutionalism in Africa and Asia has led to catastrophic abuses of power, often targeting ethnic groups, and the emergence of quasi-nationalism using violence against perceived threats. Corruption thrives due to inadequate laws, weak prosecution, and lack of accountability. Postcolonial law fails to provide justice for the majority of citizens, who are left vulnerable and oppressed.

Postcolonial legality's fate can be understood in a global context, shaped by Cold War influences and dominated by superpowers. Non-Western legal imaginations were suppressed, and globalization has transformed postcolonial states to serve global capital, eroding human rights.

The shift from universal human rights to market-friendly human rights driven by global economic constitutionalism poses challenges to social development, gender equality, indigenous rights, labor rights, and social movements. The future of postcolonial law lies in resisting global economic constitutionalism and advocating for autonomous development and human rights.