There is resurgence of interest in the area of constitutionalism worldwide, cutting across disciplines such as political science, law, and history. The experiment of constitutionalism in India, is widely seen as a unique example that emerged under the aegis of colonial rule, while at the same time breaking free from it, and setting the stage for an independent country, and tacking extremely fraught issues through a conciliatory and thoughtful approach. This course will draw upon key constitutional debates and themes to illustrate wider constitutional principles and tensions that have emerged, and situate them in a contemporary context.
This course will be an important role in enabling non law students approach the law through constitutional principles, while widening the range of readings and approaches that law students are normally exposed to at the bachelors level.
Course Aims and Objectives
This course will aim to give a broad idea of constitutional history and debates, while focusing on key moments to understand the manner in which diverse constituencies and publics negotiate this terrain. The course will focus on key questions that have been central to the study of constitutional theory globally. What remains of constituent power once a constitution is adopted? Under what conditions can a government suspend rights guaranteed by the constitution in order to maintain the liberty of citizens? Under what conditions can a government amend the constitution, and are there limits to what can be amended? Can a liberal constitutional framework deal with questions of historical injustice and minority rights?
Through this course, students will gain some familiarity with the Constitutional Assembly Debates, as well as important judgments of appellate courts. Much of the course will focus on the fundamental rights chapter of the Constitution, emergency powers under the Constitution, the role of the judiciary, minority rights, and the role of the Constitution as a means of ensuring institutional checks and balances in a democracy.
The study of constitutionalism is integral to understanding the limits of state power, the separation of powers, and the tension between the majoritarian impulse and counter-majoritarian institutions such as the judiciary. In India, the Constitutional Assembly Debates that led to the framing of the Constitution was a unique process conducted over three years. The extensive record of these debates continue to serve as an important repository of their differing values and opinions, and the remarkable ability of persons representing diverse constituencies to distil an informed consensus. These debates, along with judgments of Indian courts, legislative speeches, and the scholarly writing in this area, form the bulk of the material that this course will draw upon.
The first module of the course will examine specific aspects of Indian constitutionalism, locating it within global debates around constitutionalism, and the historical context that set the stage for the framing of the Constitution. The second module will examine key constitutional moments, including the First Amendment to the Constitution, and the period of Emergency, and the key debates around the freedom of speech and expression, the exercise of arbitrary power, and the limits to amending the Constitution that took place in these periods. The third module of the course will look at more contemporary debates around the role of the judiciary as a counter- majoritarian institution. The first part of this module examines the debate around the separation of powers and the legacy of public interest litigation. The second part of the module foreground the debates around affirmative action, reservations, diversity and secularism that have helped define the scope of Indian constitutionalism.
- Teacher: Siddharth Narrain