Using constitutional rights to create space for democracy will be the abiding challenge of our lifetime
Sanford Levinson is right to point out that constitutions are not natural objects and, therefore, we need to think about a constitution’s purpose when discussing it. How should we think about our constitutional rights and the freedoms they promise? The answer is multi-layered. Many will think of constitutional rights in terms of a remedy: a law at odds with fundamental rights enumerated in the constitution can be struck down by the judiciary. Fair; but not the whole story.
Let’s talk purpose then. At least one purpose of constitutionally guaranteed freedoms is that they enable us to seek protection from the state when it, with or without society’s backing, interferes with our individual and collective aim of self-actualisation. Perhaps the harder question then concerns what the scope of these rights is or should be – not just on paper but in practice. A constitution is, after all, composed of words so the worldview of those interpreting them matters. Michael Klarman, a Harvard law professor, reminds us that if a group can control how a constitution is interpreted they need not lose sleep about what the text says. And that is our story.
Whereas you might read the constitution and focus on freedoms, the state will and often does see the restrictions it can, indeed does, impose. The real fight, I therefore suggest, is to be the voice which while sticking to democratic norms cannot be ignored by those who interpret and apply the constitution. The real battle remains the political arena. Using constitutional rights to create space for democracy and democratic practices will be the abiding challenge of our lifetime.
How do we accomplish this? One way to do so is by retaining scepticism for state power as well as judicial rhetoric when engaging in discourse. The promise of constitutional liberty is rooted in autonomy of the citizen and not her dependence.
Furthermore, we ought to focus on debating the meaning of existing enumerated rights rather than running in search of pronouncement of unwritten ones. The Supreme Court has held that democracy is an unamendable feature of our constitution. That is powerful – some would say easy – rhetoric. And, some may say, the judiciary’s history itself is ample proof that the meaning of democracy, constitutional rights or even the idea of a constitution itself has been, for the most part, highly malleable in this country. You will be hard pressed to find five judgments that celebrate free speech. For the citizen, constant tampering with democracy and the suspicion of the very idea of individual freedoms represent major roadblocks to substantive long-term progress and empowerment. Far too often we have been robbed of holding politicians, corrupt and inefficient many of them, accountable at the ballot box. Weak civilian governments will always translate into weak constitutional protections for the citizen.
Even, and especially, as the state marginalises citizens, it recognises their central role in the constitutional rights project. Our constitutional freedoms, despite the multiple limitations they are subject to, can create a robust polity. Yes, the harsh reality is that the same constitution allows suspension of our fundamental rights during an emergency. Does it render these rights meaningless? To say yes and end the debate would be to miss nuance. Amending the constitution to provide for greater rights is just one way to improve things; creating spaces which force the state to listen is another. Denial of equal treatment and entrenched discrimination are harsh facts about the constitution. The only way of changing this is to talk about this.
Of those who approach the courts, some walk away happy but most do not. We need more spaces to have conversations, and more willingness by the state to listen can hopefully be forced by sustained pressure from the civil society and media. Of course, the question ‘is listening enough?’ a valid one in its own right.
This brings me to the next point. The battle of ideas on what our enumerated rights substantively mean has a vertical as well as a horizontal aspect. The contest over meaning of rights and freedoms occurs not just between the citizen and the state/institutions but also amongst citizens. If the state is suspicious of exercise of rights in matters of speech, religious practice, political association then, thanks to powerful conditioning, so are many of our fellow citizens. Recognising this, and acknowledging that supporting overreach by unelected institutions cannot solve our problems, would be an important step.
The freedoms promised by the constitution lead to another question: do these broadly worded provisions carry rights within them other than those specifically enumerated? For instance, judicially crafted ‘right to life’ now includes right to a clean and healthy environment, right to clean water etc. Even dams, we were told, flow from this ideal. Yet, as Anuj Bhuwania’s powerful work in India reminds us, instead of enforcing the original guarantee that the state cannot deprive us of life or liberty except under a valid law, courts have found it fit to create positive obligations – and these are obligations honoured more in breach than anything else.
The late Justice Scalia often spoke of the importance of recognising that not everything good under the sun can be found in the US constitution. The problem as well as the panacea regarding what we lack is politics – messy, agitated, even angry, but democratic politics and the freedoms it embodies. Constitutionally guaranteed freedoms represent the minimum and not the maximum of what we can enrich our polity with. There is nothing in the constitution which prohibits provincial legislatures from coming up with their own constitutions or ordinary statutes that enhance the rights provided by the constitution. Think of that when celebrating provincial autonomy.
The constitution of 1973, dubbed our founding moment by Maryam Khan in her important (upcoming) work, also went beyond the earlier versions of rights in 1956 and 1962—guaranteeing among others the inviolability of dignity of all those within our borders as well as the privacy of home. All our constitutional rights (except human dignity) are qualified – most of them qualified with broad terms such as public order, morality etc. Textual limitations on rights are no surprise. What has, however, been clearly disappointing throughout our history is the ease with which most citizens and courts have looked away from curtailment of rights. We need to realise that constitutional rights are not privileges that fall by the wayside if unpopular views are aired. These are guarantees by the state. The shortcomings of constitutional protections, and judicial rhetoric interpreting it, are ours as a society and a state. Democratic government, even our messy variant, holds out one abiding promise: citizens can over time change the character of the state. How will we use this power?
There are other many other questions to think about. Should fundamental rights only be enforceable against the state or should they protect us against private action too when faced with powerful private actors? What methods, other than judicial review, can facilitate enforcement of rights?
But all of this assumes that rights are being, or will be, enforced. For that to happen we need to breathe meaning into the words of the constitution. That will only happen if you and I talk about it. It will get a lot darker before we see light but asserting our relevance is central to this project and will always matter.
The writer is a practicing lawyer. He can be reached at [email protected]