In an essay published last year, William Baude writes about teaching constitutional law in a crisis of judicial legitimacy. He is regularly asked, how can we teach constitutional law in such a crisis of judicial legitimacy? How can we still teach students that courts are a place to seek justice?
In a similar essay titled The Crisis in Teaching Constitutional Law, Jesse Wegman says:
“I couldn’t stand up in front of the class and pretend the students should take the courts seriously in terms of legal analysis.”
He goes on to tell us that while working on the syllabus for the course,
“I literally burst into tears… I couldn’t figure out how any of this makes sense.”
Baude and Wegman are both professors of constitutional law in the US, and they both acknowledge that today, there is a crisis for constitutional lawyers. The crisis is not unique to the United States. An Indian or Kenyan constitutional lawyer would echo the same sentiments that Baude and Wegman do in their essays. As I do in this essay.
It is not a lament so much as a processing - and reckoning of - the crisis in constitutional law. This crisis has existed for a long while, but the catalyst for this essay is the Delhi High Court decision denying bail to 9 individuals who have been lodged in jail for the past 5 years as undertrial prisoners. It is not for me to go into the merits of the case here, but there is ample commentary in the public domain on the case against these persons which is built on “foundations of smoke,” as Gautam Bhatia puts it. I’m not critiquing the Court’s order (although the order does merit critical engagement) or discussing the merits of the case here. I’m just trying to process because, although I’ve not burst into tears like Wegman, I too cannot figure out how any of this makes sense.
When I told my friends the previous night that this bail plea was listed for judgment before the Delhi High Court, they were quick to tell me: “It will be rejected.” Almost six of them said the same thing. They seemed to know, almost intuitively, that bail will not be granted. All six of them do not even know the facts of the case entirely. They just know the names of the accused and the politically sensitive nature of the case. But it is enough for them to conclusively predict that the bail would not be granted. Another friend despite knowing the outcome, said: “Hope.” However, she too knew it well that bail wouldn’t be granted. The decision was almost preordained in our minds.
Therefore, like Baude and Wegman, I too ask: what does it mean to be a constitutional lawyer in India today (or at least a constitutional lawyer with some commitment to the principles espoused by the Constitution)? To be a constitutional lawyer in India today is to be in a constant state of rage. It is to ask, like Baude, “How can we still teach students that courts are a place to seek justice?” while having to defend the courts and the judicial system before the laymen, those who don’t know about the nitty-gritty of law but can tell justice and injustice apart. It is to be asked, “Are courts a place to seek justice?” and to answer, in an increasingly unconvincing tone, “Yes, they are.” It is to experience the inability to stand up before a class, like Wegman, and pretend that the students should take the courts seriously in terms of legal analysis.
To be a constitutional lawyer today is, in the words of Tarunabh Khaitan, to witness the killing of a Constitution with a thousand cuts. To be a constitutional lawyer today is to reckon that today it is Khalid or Imam or Stan Swamy, but tomorrow it could be someone you love and care about. And as an implication of that, to reckon that this probably means that you should not care about Khalid or Imam or Swamy, because you don’t know them. It is to reckon that most people in fact do not care about Khalid or Imam, who share their citizenship and constitutional rights with us all, if nothing else.
To be a constitutional lawyer today is to witness a court debate whether Stan Swamy, an old man suffering with Parkinson’s, should be allowed to have a sipper to be able to drink water while his lawyer informs the Court that it need not pass a verdict because Swamy has just passed away. To be a constitutional lawyer today is to “rejoice” at the acquittal of GN Saibaba, an academic who was 90% disabled and spent years in jail, only to be told by the High Court that the case against him lacked evidence and that he should never have been imprisoned to begin with. It is to read the prison memoir of Anand Teltumbde where he recounts the 31 months he spent in jail as an undertrial prisoner before finally getting bail. It is to laugh at the hilariously cruel irony that Teltumbde is the grandson-in-law of Dr B R Ambedkar, the man in-charge of drafting the Constitution.
To be a constitutional lawyer in India today is to listen to the deafening silence of 3 seconds between the judges saying to 9 undertrial prisoners languishing in jail for 5 years, “All appeals dismissed.” To be a constitutional lawyer in India today is to oscillate between hilarity and rage, constantly.
To be a constitutional lawyer in India today is to know about Swamy and Saibaba and Teltumbde and tens of others, and to pretend that everything is fine. It is to turn a blind eye. It is to witness your friends turn a blind eye and pretend that everything is fine. It is to hear, “What can we do?” every time you express concern. It is to be enraged and in turn being told, “What else did you expect?” To be a constitutional lawyer in India today is to be flabbergasted repeatedly, to be disappointed repeatedly till disappointment runs out. To be a constitutional lawyer in India today is to be enraged and to be able to express that rage only on a piece of paper, because the rage is not popularly legitimate or it is disproportionate. It is to introduce yourself and what you do to someone at a party and being told, “Oh, so you babysit the chaos.”
But, thankfully, it is not just that. To be a constitutional lawyer in India is not just to be a passive observer. It is to have the opportunity to right the wrong, wherever you can, in whatever way you can. It is to have the rare opportunity to be able to tell the right and the wrong apart. Most importantly, to be a constitutional lawyer in India is to have, in the words of Obama, the audacity of hope. It is to have both, the audacity and the hope. It is to realise that it has never been more important than today to know about the Constitution, to talk about it and to care about it.
To be a constitutional lawyer in India today is to constantly tell yourself what Kim-Lane Scheppele once wrote in an article:
“Liberal and democratic constitutionalism is worth defending, but first we need to stop taking it for granted that constitutions can defend themselves.”
Masoom Sanyal is a final year law student at Gujarat National Law University.