[Vidhispeaks] Celebrating the Constitution - Six Samvidhaan Fellows at Vidhi on Constitution and the past year

On Gandhi Jayanti last year, Charkha, the Constitutional law centre at Vidhi Centre for Legal Policy launched the Samvidhaan Fellowship to promote original research on relatively under-explored subjects in the Indian constitution. This year, six Samvidhaan Fellows, who have worked on a range of important, contemporary issues, from caste and minority rights to equal rights and federalism, share their experience below.

What do you understand by the phrase "bringing the Constitution to the people"? And in what way has the Samvidhaan fellowship helped you achieve this?

Afreen Bano Khan: The Constitution is the longest document in the world. It is also the people’s document. However, it has remained distant from the very people it aims to represent. My experiences from the field and the trial courts- where I mostly represent the marginalised struggling to interpret the law- have shown me that “bringing the constitution to the people” is quite an individualistic exercise and is easier said than done. I understand that people are generally aware that there exists a constitution that ensures their ‘maulikadhikar’ (fundamental rights) but these same people are not equipped with the skills to ensure that these rights remain protected. As a Samvidhaan fellow, one of my goals was to help them identify those constitutional practices that can be implemented for the benefit of the common person.

Afreen is researching on the impact of the CAA, 2019 on Muslims.

Padmini Baruah: In the context of my work, “bringing the Constitution to the people” has a very literal interpretation. One cannot “bring” the Constitution to those who are not under the protective umbrella of the state. The Samvidhaan fellowship allowed me to investigate this loophole in depth. Through the ethnographic interviews and discourse analysis research, I conducted in Assam, I was able to capture the voices of those people, especially women, who are systemically denied their basic constitutional rights. I have worked on paperwork as a site of exclusion, and have analysed over one thousand judgments of the Guwahati High Court to examine the rationales that judges used to determine citizenship cases in Assam. My Vidhi mentor provided invaluable insights in helping me conceptualise and execute this research project.

Padmini is researching on the themes of statelessness and citizenship generally, and its implications in Assam, in particular.

You devoted the last year to constitutional research. What is your research about and what did you discover?

Subhajit Debnath: Sikkim has a distinct identity within the Union. The ideas, institutions, and interests inspired by the Constitution of India have radically transformed the society in Sikkim. Article 371F is a source of both stability and conflict in the Sikkimese society. The Old Laws of Sikkim is the essence of Article 371F, its practices and processes should be strengthened while prudently responding to the changing needs of contemporary Sikkim. Article 371F exists sine qua non to preserve, protect, and defend the ethos, rights, and interests of the Sikkimese.

Subhajit is examining the constitutional design of Article 371F, an unexplored area of the Indian Constitution.

Sumedha Ray Sarkar: My primary question was whether the Parliament could, on the grounds of instituting a link language, mandate its study in schools. I also looked at how the Constitution would respond to such a law. In attempting to answer this question, I discovered that crucial context was provided by sociolinguists and linguistic anthropologists (amongst other scholars). Scholarship from these disciplines helped me engage in a more meaningful way with Indian constitutional provisions such as the connections between Article 351 and our linguistic history.

Sumedha is researching on the broad areas of federalism and minority rights, with a specific focus on link languages in India.

What is the one thing about the Constitution that continues to amaze you?

Lalit Panda: The Constitution serves as a promise. But the meaning of that promise has always changed with time. It is this interplay between commitment and evolution that has always amazed me. For instance, I wonder, what compels judges to criticize decades of precedents instead of demanding that issues’ horizons be expanded? I think this line of thinking is evident in the context of the right to equality. Judicial impatience often results in dropping everything and starting from scratch, but I think that past doctrinal errors should be taken as hints and used to build upon solidly instead of being forgotten. Throughout the past decades, the evolution of the right to equality in India has been haphazard and I am excited by how erratic fluctuations of doctrines like non-arbitrariness will, over time, serve to clarify the meaning of constitutional commitments.

Lalit is researching on the possibility of economic justifications for the structure of the right to equality.

Sumedha Ray Sarkar: In the specific context of my research, what continues to amaze me about the Constitution is how accommodative it is of competing ideologies. Given the challenging circumstances it was being drafted under, and the deeply divided groups it was being written on behalf of, it is truly commendable how reflective this document is.

What hurdles did you face during your time as a Samvidhaan Fellow because of COVID-19? And how did you overcome them?

Afreen Bano Khan: There were quite a few! Most of it was due to the pandemic and others due to the sensitivity of my research topic. While fear of COVID-19 did not allow people out of their homes, the fear of speaking about the issue in question stopped many from engaging with my questionnaires. I had to change the location of my field visits too. Even though it took time, eventually but I was able to interview 55 persons.

Subhajit Debnath: My study was not really affected due to COVID-19. However, my research was stymied due to poor record-keeping and other archival practices. The discussions concerning the constitutional history of Sikkim suffered from a paucity of sources exacerbated by the sensitivities of subsumption by India during 1975.

The Indian constitution is an ambitious document that aims to encapsulate the dreams and aspirations of all Indians. This is no doubt a gargantuan challenge. Through your Fellowship, name one unique Constitutional conundrum that you unearthed.

AmulyaPurushothama: Article 17 declares that “untouchability” is abolished and its practice in any form is “forbidden”. The article also states that “the enforcement of any disability arising out of untouchability” is a punishable offense in the law. Now, one could argue that this provision read along with the right to equality and right to life provisions should protect scheduled castes and scheduled tribes from social injustice and exploitation. Our Constitution was thus, drafted with some sense of righting historical injustice and suffering.

However, the framers of the Constitution also left the term “untouchability” undefined. So now the question becomes, how do we medicate a wound when we do not know how to define it? Several Dalit scholars have argued that untouchability is only the symptom and that the ontological wound is the existence of caste. Others disagree. While there is some evidence in the Constituent Assembly Debates that the framers left the phrase “untouchability” undefined to avoid excluding any form of the practice, there is also evidence some framers actually wanted to abolish the caste system instead. The interesting questions here are why did these proposals get shot down? How would the judicial interpretation of caste atrocities legislation have changed had we abolished the practice of untouchability and the observance of caste? These are some of the questions I was encouraged to grapple with in my Fellowship.

Lalit Panda: I have been struck by the way Indian courts have approached the interplay between the general right to equality in Article 14 and the right against discrimination in Articles 15, 16, and 29. The general right to equality has been traditionally viewed as a guarantee of rational treatment, but jurisdictions across the world have been moving away from rationality and relevance-based tests, opting instead for a "substantive" conception of equality that is not only sensitive to pre-existing disadvantage but also cognisant of how discriminatory behavior affects personal autonomy, dignity, and other similar interests. Now, if Indian courts are correct in saying that Article 14 is the genus and Article 15 and its siblings are species, what does this mean for the Indian understanding of discrimination? Can rationality protect against discrimination? Could we benefit from common principles that run across the formal and substantive visions of equality? These are some of the questions I was encouraged to grapple with in my Fellowship.

Supported by Azim Premji Philanthropy Initiatives (APPI), the Samvidhaan Fellowship is a one-year, full-time, paid programme that enables six constitutional scholars to pitch their proposals and sustainably work on constitutional law issues.

Vidhispeaks is a fortnightly column on law and policy curated by Vidhi. The views expressed are of the fellows and do not reflect the views of Vidhi or Bar & Bench.

Edited by: Kanav Narayan Sahgal