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Unformatted text preview: 8 - Narain Book Proof.docx (Do Not Delete) 3/8/16 1:24 PM POSTCOLONIAL CONSTITUTIONALISM IN INDIA: COMPLEXITIES & CONTRADICTIONS VRINDA NARAIN* TABLE OF CONTENTS I. II. III. IV. V. INTRODUCTION ............................................................ 107 THE CONSTITUTIONAL FRAMEWORK: COMPLEXITIES & CONTRADICTIONS ................................................... 111 A. FUNDAMENTAL RIGHTS AND DUTIES......................... 114 B. DIRECTIVE PRINCIPLES .............................................. 115 LOCATING INDIAN WOMEN ...................................... 117 POSTCOLONIAL TRANSFORMATIVE CONSTITUTIONALISM ................................................. 122 CONCLUSION ................................................................. 132 I. INTRODUCTION Despite strong constitutional guarantees, women in postcolonial India have been excluded from equal citizenship. They face systemic discrimination within the contradictory context of legal equality in the public sphere and legitimized discrimination in personal status laws; laws to protect women’s rights are not enforced, gender-based violence has sharply increased, and the state does little to ensure equality and nondiscrimination guarantees. Arguably, democratic institutions and structures of accountability have failed women. A shocking incident of violence against women in India was the brutal gang rape and subsequent death of a young woman in a moving bus in India’s capital, New Delhi, in December 2012. Following the tremendous national outrage at the incident, the government set up the Verma Committee to consider amendments to the criminal law dealing with sexual violence. Headed by a former Chief * Associate Professor, Faculty of Law and the Institute for Gender, Sexuality and Feminist Studies, McGill University; Research Fellow, (International Studies Group), University of the Free State, South Africa. I would like to thank Laetitia Baya Yantren for her excellent research assistance. I am grateful to the Aisenstadt Fund for financial support. 107 8 - Narain Book Proof.docx (Do Not Delete) 108 Southern California Interdisciplinary Law Journal 3/8/16 1:24 PM [Vol. 25: 107 Justice of India, J. S. Verma, the Verma Committee published its report in January 2013.1 This report was a scathing indictment of the postcolonial state: the legislature, the executive, and law enforcement structures. It exposed the staggering extent to which the state and democratic institutions of the country have failed to act to enforce constitutional guarantees of equality and non-discrimination. As well, the Report was a call to action for civil society to engage in dialogue and introspection to better understand cultural and attitudinal changes critical to addressing and remedying the status of women in India. In May 2013, the government of India constituted a High Level Committee (“The Committee”) to inquire into the status of women.2 The Committee’s mandate was “to undertake a comprehensive study on the status of women since 1989, and to evolve appropriate policy interventions based on a contemporary assessment of women’s economic, legal, political, education, health, and socio-cultural needs.”3 Since 1975, there had been no systematic inquiry into the status of women in India.4 The 1975 Report was a wake-up call for the Indian women’s movement—harshly critical of the government and holding it accountable for the continued abysmal status of women in postcolonial India.5 The Committee released its report in 2015 and identified violence against women, the low sex ratio, and the continued economic disempowerment of women as the critical aspects of women’s disadvantage that required immediate state action.6 Significantly, the Report emphasized the need to enforce the constitutional promise of gender equality and the imperative to pursue not just legal reform, but enforcement of existing laws to address women’s vulnerability.7 The Report found that neo-liberal economic policies have disadvantaged women in India and that, across all indicators, women’s equality remains elusive.8 Despite state efforts in initiating legislation and in creating remedial programs to address women’s status, none of these have had any significant impact.9 The Committee reaffirmed the findings of the Verma Committee regarding the harsh climate of violence against 1 J.S. VERMA, LEILA SETH, & GOPAL SUBRAMANIUM, REPORT OF THE COMMITTEE ON AMENDMENTS TO CRIMINAL LAW (2013) [hereinafter VERMA REPORT]. 2 HIGH LEVEL COMMITTEE ON THE STATUS OF WOMEN IN INDIA, MINISTRY OF WOMEN AND CHILD DEV., EXECUTIVE SUMMARY: REPORT ON THE STATUS OF WOMEN IN INDIA (2015) at 2. 3 Id. 4 See id. 5 PHULRENU GUHA ET AL., MINISTRY OF EDUCATION & SOCIAL WELFARE, TOWARDS EQUALITY: REPORT OF THE COMMITTEE ON THE STATUS OF WOMEN IN INDIA (1975). 6 HIGH LEVEL COMMITTEE ON THE STATUS OF WOMEN IN INDIA, supra note 2, at 2. 7 Id. 8 Id. at 3-4. 9 Id. at 4. 8 - Narain Book Proof.docx (Do Not Delete) 2016] Postcolonial Constitutionalism 3/8/16 1:24 PM 109 women and called on the state to implement the recommendations linking the state’s failure to enforce laws and the violation of women’s human rights.10 It called on the state to honor its obligations under international human rights law and, in particular, the Convention on Elimination of all Forms of Discrimination against Women (“CEDAW”).11 Personal laws, which legitimized women’s unequal status within the family, were identified as a primary cause of women’s inequality.12 In political participation and representation, education, health, access to justice, access to credit, and property ownership, women continue to be discriminated against.13 In total, the Committee found that across all aspects of life, the State had to be more effective in order to address women’s inequality across the country. Significantly, the Committee laid great emphasis on law reform as a critical aspect of ensuring women’s equality and called on the state to fulfill the promise of constitutional equality—a promise that had yet to be translated into material reality for women. Postcolonial constitutions have often been understood as providing: “a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence . . . .”14 Considering the emancipatory potential of postcolonial constitutions is an exciting area of study that resonates across global democracies as they grapple with the issue of fostering constitutional cultures that can strengthen citizenship, equality, and the protection of women’s human rights. The objective of this Article is to examine the transformative potential of postcolonial constitutionalism for women’s rights in India. I will consider its complexities and contradictions, questioning the extent to which constitutional guarantees and their judicial affirmation can ensure justice for women. My objective is to further develop an understanding of whether postcolonial constitutionalism can be seen as transgressive and emancipatory or as reinforcing existing relations of power. The premise of this inquiry is that constitutionalism carries within it the potential of inducing far reaching social transformation through democratic, peaceful processes grounded in the rule of law. This issue shall be examined through the lens of the Indian Constitution, which was drafted as a manifesto for 10 See generally Id.; See generally VERMA REPORT, supra note 1. 11 HIGH LEVEL COMMITTEE ON THE STATUS OF WOMEN IN INDIA, supra note 2, at 9. 12 Id. at 36. 13 See generally id. 14 Pius Langa, Transformative Constitutionalism, 17 STELLENBOSCH L. REV. 351, 352 (2006), quoted in S. AFR. (INTERIM) CONST. 1993. 8 - Narain Book Proof.docx (Do Not Delete) 110 Southern California Interdisciplinary Law Journal 3/8/16 1:24 PM [Vol. 25: 107 social change and was intended to return the imperial gaze to construct the modern Indian nation on the values of equality and the rule of law. The Indian constitution was constructed as a moral autobiography, which promised a new future while explicitly rejecting the colonial past.15 It was deeply influenced by the ideas of human rights and committed to the principle of equality.16 However, these lofty aspirations have not translated into better rights for women on the ground. The theoretical framework will be informed by insights from comparative constitutionalism, postcolonial theory, feminist legal theory, and traditional legal doctrinal analysis. My aim is to examine the Indian Constitution in order to uncover its underlying assumptions as well as its normative aspirations, and to reflect on the Indian experience as it relates to broader themes of postcolonial constitutionalism. In Part I, this Article examines the constitutional context and framework; in Part II, the Article comments on the Vishaka v. Rajasthan decision, using it as the prism through which to examine the transformative promise of constitutionalism in India.17 The Article concludes in Part III, with an analysis of postcolonial constitutionalism and evaluates its emancipatory promise for Indian women. The long tradition of equality jurisprudence in India and the tremendous potential of constitutional provisions provide the context and opportunity for a rich engagement with constitutionalism to further equality rights. As Granville Austin notes, “The Indian Constitution is a live document in a society rapidly changing and almost frenetically political. The touchstone for public and many private affairs, the Constitution is employed daily, if not hourly, by citizens in pursuit of their personal interests or in their desire to serve the public good.”18 This Article will not only help elucidate areas in which the promise of constitutional law can be realized to create salient changes in people’s everyday lives, but will also help better identify what can be done to strengthen the state’s commitment to equality and inclusive citizenship, focused on those who are most marginalized and disempowered. This Article aims to contribute to efforts to ensure more effective legal protection for women in India; and to promote a stronger transnational rights dialogue which will further our 15 Upendra Baxi, Postcolonial Legality, in A COMPANION TO POSTCOLONIAL STUDIES 540, 544 (Henry Schwarz and Sangeeta Ray, eds., 2000) [hereinafter Baxi, Postcolonial Legality]. 16 GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 59 (1966), [hereinafter AUSTIN, INDIAN CONSTITUTION]. 17 Vishaka v. Rajasthan, AIR 1997 SC 3011 (India). 18 GRANVILLE AUSTIN, WORKING IN A DEMOCRATIC CONSTITUTION: A HISTORY OF THE INDIAN EXPERIENCE 10 (1999) [hereinafter AUSTIN, WORKING]. 8 - Narain Book Proof.docx (Do Not Delete) 2016] Postcolonial Constitutionalism 3/8/16 1:24 PM 111 understanding of equality and discrimination in India. I draw upon the theoretical perspectives of Upendra Baxi to build upon the idea of transformative constitutionalism in postcolonial nations with a view to construct an understanding of the possibility of rights enforcement and social justice. Baxi’s work provides an essential starting point to examine the constitutional implications of the gap between law and justice and the reality of rights violations in contemporary India. II. THE CONSTITUTIONAL FRAMEWORK: COMPLEXITIES & CONTRADICTIONS The postcolonial Indian state was acutely conscious of the need to address the status of women and disadvantaged groups. Law reform was written into the national program of development and modernization, and yet discriminatory family laws coexist with constitutional guarantees. Women’s constitutional equality remains elusive particularly with regard to violence against women.19 It is this complexity and contradiction that provides a rich venue in which to understand how law and constitutionalism can guide projects of modernization, transformation, and social change. Indeed, India’s complex Constitution can be credited for mandating and sustaining reform and guiding India through its tremendous diversity and inequity to a certain uniformity and equality while respecting group difference.20 The ways in which constitutional law is implicated in these efforts in India, to recognize diversity, engage citizens, and uphold rights guarantees, makes this inquiry compelling and underscores the significance of determining whether constitutions are transgressive and emancipatory or serve merely to reinforce existing relations of power. This Article acknowledges the limitations of rights and of constitutionalism. As constitutional scholar Austin astutely observes, neither the constitution’s rights nor the courts themselves can ensure citizens’ equality; it is the executive branch that can fulfill these constitutional promises.21 Further, “so long as judicial processes continue being inordinately slow . . . the courts, themselves, provide all too little protection for citizens’ fundamental rights.”22 The Indian judicial system is notoriously backlogged. The Supreme Court of India noted this critical 19 20 VERMA REPORT, supra note 1, at 7-13, 32, 45-51, 56. Werner Menski, Fuzzy Law and the Boundaries of Secularism, 13:3 PORCHEFSTROOMSE ELEKTRONIESE REGSBLAD 30, 38, 47-49 (2010). 21 Granville Austin, A Historian’s Reflections on the Indian Constitution, in HUMAN RIGHTS, JUSTICE, & CONSTITUTIONAL EMPOWERMENT xxii, xxv (C. Raj Kumar & K. Cockalingam eds., 2007) [hereinafter Austin Historian’s Reflections]. 22 Id. 8 - Narain Book Proof.docx (Do Not Delete) 112 Southern California Interdisciplinary Law Journal 3/8/16 1:24 PM [Vol. 25: 107 situation with regard to the backlog of cases in Imtiyaz Ahmed v. State of Uttar Pradesh.23 Taking note of this decision, the 20th Law Commission of India prepared a Report highlighting the critical situation with regards to arrears and backlog.24 With Imtiyaz Ahmed as the premise of its inquiry, the Commission’s Report makes the link between the delay in justice and the denial of justice.25 The Report identified the lack of judges as one of the primary reasons for the staggering backlog of cases to be heard.26 According to this Report, the current ratio of 10.5 judges per million, far lower than in other countries, is woefully inadequate, and the Commission recommended that it be increased to at least fifty judges per million of the Indian population.27 Further, acknowledging that simply increasing the number of judges is not a sufficient response, the Report noted as well the need for systemic judicial reform aimed at reducing delays at all levels of the judicial system.28 Given this state of affairs, it is valid to question whether in practice, constitutional guarantees of equality exist at all.29 At the same time, women in India are challenging laws, religious norms, and cultural traditions, drawing upon arguments of constitutional equality, fundamental rights and international human rights law, notably CEDAW.30 This engagement with the discourse of rights occurs at several levels. As claimants, women assert their constitutional equality rights in the courts appealing as well to international human rights norms of equality and anti-discrimination. For its part, the Supreme Court, through its interpretational creativity of constitutional provisions and its receptiveness to Public Interest Litigation (“PIL”), has breathed life into formal constitutional guarantees.31 Interestingly, the Supreme Court has linked the non-enforceable Directive Principles with enforceable Fundamental Rights 23 24 Imtiyaz Ahmed v. State of Uttar Pradesh, AIR 2012 SC 642 (India). GOVERNMENT OF INDIA, LAW COMMISSION, REPORT NO. 245, ARREARS AND BACKLOG: CREATING ADDITIONAL JUDICIAL (WO)MANPOWER (2014), . 25 Id. at 1. 26 Id. at 47. 27 Id. at 53. 28 Id. at 51. 29 Austin, supra note 21. 30 See, e.g., Convention on the Elimination of all Forms of Discrimination Against Women, G.A. Res. 34/180, (Dec. 18, 1979); Universal Declaration of Human Rights, G.A. Res. 217 (III) A, (Dec. 10, 1948); and Vedna Jivan & Christine Forster, What Would Gandhi Say? Reconciling Universalism, Cultural Relativism, and Feminism Through Women’s Use of CEDAW, 9 SING. Y.B. INT’L L. 103, 104 (2005). 31 Upendra Baxi, Preliminary Notes on Transformative Constitutionalism, in TRANSFORMATIVE CONSTITUTIONALISM: COMPARING THE APEX COURTS OF BRAZIL, INDIA AND SOUTH AFRICA 19, 38 (Oscar Vilhena, Upendra Baxi & Frans Viljoen, eds., 2013) (referring to “social action litigation” when describing the influence of Public Interest Litigation in the development of constitutional and human rights.”). 8 - Narain Book Proof.docx (Do Not Delete) 2016] Postcolonial Constitutionalism 3/8/16 1:24 PM 113 to strengthen its recognition of women’s equality rights.32 Using Directive Principles to inform its interpretation of the right to gender equality, the Supreme Court has crafted thoughtful, contextual responses to women’s inequality. In addition, the Supreme Court of India explicitly incorporates the rules and principles of international human rights norms where gaps exist in national legislation.33 Finally, in what might be characterized as a constitutional dialogue between the judiciary and the legislature, the legislature has initiated laws that are consistent with the protection of women’s human rights.34 Most recently, Parliament has enacted legislation to address domestic violence and sexual violence against women in the workplace.35 Despite such promising developments, the material reality of women’s lives in India does not reflect much improvement, nor has the gap between formal rights and the actual status of women been narrowed as a result of this legalization of human rights. The Indian Constitution has been characterized as a manifesto for social revolution with an explicit transformative agenda.36 It was drafted at a time when the ideals and aspirations of human rights were compelling to the leaders of the newly independent nation.37 The Constitution mandates the state to redress not just the injustices of the colonial past but also ancient wrongs such as untouchability, the status of women, and Hindu patriarchy.38 The status of women was central to this self-conscious modernizing project of nationalism. As in other postcolonial societies, law was understood to be the primary agent of social change. Recognizing the importance of law reform as a catalyst for social change and the significance of rights in remedying the harsh inequities of colonial India— with its divisions of class, caste, gender, and religion—the Constitution emphasized the importance of universal human rights, principles of equality, and non-discrimination.39 In turn, the judiciary was mandated with the task of bringing about change, enforcing rights and regulating and reforming religion to address 32 Vishaka v. Rajasthan, AIR 1997 SC 3011 (India). 33 Id. at 2-4. 34 See The Protection of Women from Domestic Violence Act, 2005, Gazette of India, pt. II sec. 1 (Sept. 13, 2005) [hereinafter Domestic Violence Act]; The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, Gazette of India, pt. II sec. 1 (Apr. 22, 2013) [hereinafter Sexual Harassment Act]. 35 Sexual Harassment Act, supra note 34. 36 AUSTIN, INDIAN CONSTITUTION, supra note 16, at 51, 164. 37 Id. 38 Baxi, Postcolonial Legality, supra note 15, at 545. 39 AUSTIN, INDIAN CONSTITUTION, supra note 16, at 50-51. 8 - Narain Book Proof.docx (Do Not Delete) 114 Southern California Interdisciplinary Law Journal 3/8/16 1:24 PM [Vol. 25: 107 inequities, particularly with regard to gender and caste.40 Taking its postcolonial constitutional mandate for social reform through judicial activism seriously, the Indian Supreme Court has been remarkably enthusiastic about interpreting the Constitution to reach decisions in favor of equality rights. The Supreme Court, as in most postcolonial...
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