‘constitutional’ Realities: Priya Thangarajah
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?