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‘constitutional’ Realities: Priya Thangarajah

March 22, 2010

Guest post by PRIYA THANGARAJAH

The piece is unfinished, consciously so. The thought is unfinished and needs to be fleshed out and thus posting this, so that this important idea can be evolved collectively. It raises a range of questions and contributes to existing debates on constitutional law from a social change/human rights perspective. (consciously the words ‘constitution’ and ‘india’ are not capitalised. ) It contributes significantly to an understanding, not just of north east india but the realities of chattisgarh, jharkhand, bihar, kashmir to name a few. It helps us understand all the wars fought within the country – ‘constitutionally’ about which much is being said in the media and elsewhere by state and non-state actors.

The constitution, some argue, is an aspirational document. Baxi states that it is created to protect the rights of the impoverished. Created to protect the weaker sections of society and that’s how the Dworkinian trumping of rights works. Rights of the weaker parties always trumps that of the stronger. But whatever the aim of the constitution maybe, its sacrosanct. Sacred. Amendments can be made with great difficulty but the constitution per se cannot be done away with for a new one.

Its un-demolish-ability might be part of its problem. It was only when I heard of the current Nepali debates on constitutionality and the many constitutions that they have had that it made me realize that we have an almost god like reverence of the constitution and for rights to be fought and carved within that framework. This then might be the reason so many are born un-citizened. What do I mean by un-citizened? ‘We the people’ enter in to a contract with the State giving our independence and liberty and in return the State provides us ‘security’ and ‘stability’. And we become citizens of the Nation with some inherent rights that we do not let the State or anyone/thing else take away from us. But time and again we find ourselves having to demand that the State ‘give’ us these inalienable rights. To prove ourselves as citizens and not mere subjects. We must wonder how that happened! Just in case I am being remotely subtle, I am essentially asking, why do we demand for rights that already belong to us? We fight for our right to privacy, life and dignity. The constitution itself might provide us an answer –we are born un-citizened and thus constantly having to prove our citizenship and our right to enjoy these rights.

Traveling through the 6th schedule area of Tripura I am caught in one thought alone. How the constitution traps the aspirations and rights of a people within a Schedule and governs them. The constitution and the reality of how an amendment looks I must say still leaves unanswered the assumed superiority of this constitution or any other in this regard. This in a sense is a re framing of the feminist argument- the law itself is an intrinsic part of the creation of an oppressive structure cannot provide for rights by default but is only a mere tool to deal with in the here and now. But the longer we keep using it in its own terms, the more power it gains and so is the case with the constitution, the primary legal document of all nations.

The indigenous population of Tripura numbering 31% having been through violent and democratic means of struggling for the rights of self governance and to have rights over their resources. Their demands for self governance led to areas of Tripura being declared 6th schedule area and the passing of tribal and other forest dwellers rights act ‘giving’ tribal people property rights over land on which they have lived for several years. The disturbed area’s act and the highest number of police and army camps govern this 6th schedule area. The army camps are based in schools. Self governance indeed.

Kokborok which is the language of the indigenous people is an official language of the State however the implementation of the language policy has been abysmal.

The Nelli masscare in the year 1983 begs the same question most massacres force us to forget. Are we not humans? Are we not citizens? That we are killed, buried and forgotten with no worthwhile compensation or acknowledgement of the atrocitiy committed.

The constitutional right to live can be taken away constitutionally. The un citizened manipuri subject is stripped of her right even to demand her right to live. If the state of emergency is the norm then that norm is no clearer than in North East india and especially in manipur, nagaland and Arunachal pradesh where, incidentally, I as a non indian citizen with a valid indian visa, need a permit to travel. The Armed forces Special Powers Act has been in force for the past 50 years in these areas. A permanent state of exception created making use not even of a constitutional provision of `emergency power` but through the law making power that the constitution gives allowing the creation of ‘bare bodies’- a right that is the pure prerogative of the sovereign. This includes the right to declare a death sentence, punish you for suicide and make you in to a bare body that can be ‘killed’ but not ‘murdered’. In the middle of this is Irom Sharmila, fasting for the past ten years asking for the repeal of AFSPA. She is ready to die fighting a law that kills and the State enters yet again to show its bare power. Irom sharmila has been force fed for the last ten years, for a state and only a state can take life. When looking at the number of activist and journalist who have been killed and also those who have not been I am forced to draw a crude and almost obcense analysis- if the bare life is able to force herself into the world of zoe and leave behind bios then life maybe protected. So an activist must constantly prove her citizenship and humaness by creating a legitimacy of her citizenship through the acceptance of other citizens. Some never get accepted to this realm of citizenary and find themselves tortured and killed. ( Refer Giorgio Agamben)

The constitution apart from being a contract between the sovereign and subject, it is also a geographical document. Mapping the nation state that the powerful sovereign imagines his authority over. It includes the right to give, deny, share or ignore the land upon which the subject lives. The manipuri state had its own constitution and sovereign control before the british ruled over it. When the British left, the manipuri state should have returned to the manipuri sovereign but found itself annexed to india. And forcefully embossed within the indian constitution, manipur lost its nationhood and entered into the realm of the exception within a new nation.

If the constitution is one that we give ourselves then maybe it has to change, its superiority shaken for when we say ‘we the people’ we mean – we the non tribal – we mean we the non women – we mean we the higher caste or class. This question of who the ‘we’ are has been asked challenged and questioned throughout the existence of the constitution. So where do we place ‘minority’ rights which are the rights we are always fighting the State for ? In the realm of the un-citizened? Can a constitution ever capture minority aspirations in the same way it captures the majoritarian view?

4 Comments leave one →
  1. atreyee permalink
    March 23, 2010 3:38 AM

    Hi Priya,

    Nice to read you here, and feel your old rhythmic energy, ringing still.

    My reaction is confused, but I will begin by asking at what point the text that legitimates your right of being is a ‘thing’, at what point it is a ‘voice’, at what point it is a shadow of a paternal figure, at what point it goes ‘divine’. Reading you, I kept thinking of Hannah Arendt in On Revolution urging the increasingly comfortable left-liberal politics among academic Western Marxism to think of ‘beginnings’ and ask if there were ever any ‘new beginnings’, that in the name of a moment as a ‘beginning’ a beginning is made. Not many of us in our daily lives think of the webs of social contracts in which we exist. Enmeshed. In interpersonal relationships of love hate ambivalence, in politics and aesthetics, in the domestic, the intimate and in the valiant and flamboyantly public. But a minority-friendly judgment, a reading-down of an oppressive law, a hunger strike, a march, a coffee-table conversation, a highway-drive can sometimes remind us of social contracts. Yes, many will stop here and say the Social Contract is only the one where you give up your sovereignty to the receptacle of collective sovereignty- a modern liberal democratic state and let the body politic speak for you.

    Where am I to locate this pristine sovereignty that I possessed in my original state of being which I have now transferred onto the body politic? I know myself in intersecting planes of sociality, talk, gesture, text, brush-of-shoulders, mirror-images. I have a will that is a delicately sutured fabric woven as many structures come to collide with each other in history to produce a sense of ‘me’. One of these is a public, legal text. A promise. An assurance, a pat on the back, a strong arm. And sometimes a threat. So here I am – produced – as a late modern angst-ridden blah-machine that speaks back to structures that gave me my sovereign backbone, and I say give me back my sovereignty. So to come to my point in my longwinded way, should we take a step back further when we say was the right not with/within me in the first place? Should we not ask where did we begin being ‘us’ – a messy jigsaw puzzle of rights, obligations, emotions, nameless half-learned dispositions? Perhaps, our ‘within’ became known to us only in the calling of our ‘within’ from amongst voices and structures ‘without’. Perhaps our ‘being’ in the original isn’t so easily proven. Perhaps, in the ‘giving’ we came to be. Just as in our familial naming, we became ‘human’, beginning our insignificant micro-histories in the most commonplace social structure of singling us out in ‘interpellation’. In the calling of us as ‘woman’, we became women, and in the shadow of texts, we saw ourselves as ‘citizens’. The Text, among many others, is one that names us and informs our ‘being’ even as it colors up our ‘nothingness’. And in turning back and calling out to the Text, we become ‘citizens’ even as we forever remain ‘becoming citizens’.

  2. Vivek permalink
    March 24, 2010 3:04 AM

    Hi Priya!

    I really enjoyed reading this post. It pushed me to think critically about the idea of a ‘constitution’. Legally it has been defined in many ways – as a ‘rule of recognition’ based on which other laws are made, a document that governs the relationship between citizen and state and between various organs of the state etc. But for most countries, it also emerges as a document of substantive citizenship in some sense – at the end of a anti-colonial struggle, as a compromise between warring factions in a civil war… At what point does such a document become an instrument that denies citizenship? To be sure, at the very point it says x is a citizen it also says y is not. But is there a difference between this denial and a denial of the promise based on which the constitution was initially accepted? Is it because we see it as a legal document stripped of the social and political values which accompany it? Is it possible for ‘we the people’ to retrieve (if ‘we’ ever had it) or reject the constitution? If it is not, from what position do we question this primal legal document – as a citizen it created, already in its fold – or as an outsider who has no claim over this document another set of people gave unto themselves?

  3. Kalyani permalink
    March 27, 2010 1:02 AM

    Hi Priya,

    Wonderful post! It is interesting to see the contrast you draw out between the formal amendment process, which the political elite of the time would resort to when they want to effect change and the activist constantly having to prove her citizenship and humaneness. While both end up destabilising / reinterpreting the text, creating many constitutions?, they are somehow not seen as ‘equal’ rewritings.

    The judgment in ADM Jabalpur has a part in it which discusses whether the right to life is captured within Article 21 or whether something akin to it exists outside the text. And in constitutional practice, one finds that it steps further away from the text, and sometimes swearing literally, by the written word and at other times, dragging situations – like the Manipuri case you describe – into its realm. So like A just described above, perhaps its not just a case of the inside and outside, Agamben notwithstanding, but about that in between as well?

    And so, minority rights – must one interpret them in particular Parts or Schedules of the constitutional text at all? Minority or majority, its counting by numbers still, and one way of “capturing” them in same sense, could be to deny altogether that they are to be relegated to specific provisions in the constitution?

    Again, very interesting read!

  4. Nandini permalink
    March 31, 2010 7:26 PM

    Hullo Priya,

    An alternate Zoe, courtesy Calvino:

    “In every part of this city, you can, in turn, sleep, make tools, cook, accumulate gold, disrobe, reign, sell, question oracles. Any one of it’s pyramid roofs could cover the leprosarium or the odalisques’ baths. The traveler roams all around and has nothing but doubts: he is unable to distinguish features of the city, the features he keeps distinct in his mind also mingle. He infers this: if existence in all its moments is all of itself, Zoe is the place of indivisible existence. But why, then, does the city exist? What line separates the inside from the outside, the rumble of wheels from the howl of wolves?”

    Cities and Signs 3, Invisible Cities.

    It sounds like a good (if hectic) place to be, eh?

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