Book Review: The Oxford Handbook of the Indian Constitution

[avinash shahi]

The Oxford Handbook of the Indian Constitution
Authors: Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta
Publishers: Oxford University Press
Pages: 1072
Price: 960
http://indianexpress.com/article/lifestyle/books/handbook-of-the-indian-constitution-review-a-site-of-struggle-2930628/


Having been asked belatedly to contribute to this book by a
disturbingly peripatetic editor, here’s a caveat: I may not be the
best person to review it. The Oxford Handbook of the Indian
Constitution broods a galaxy of writers: two former Supreme Court
judges, 14 practising advocates (including a pupil barrister), 22
teaching abroad, three from the Centre for Policy Research from which
this book was born, seven students, the rest academics of various
description. What an incredible team to examine the Constitution “as a
charter through which an ancient civilisation was set on the road to
modernity and social reform” and to “guide the fluidity of Indian
Constitution law”! Meant for students and lawyers, it might belie the
expectations of both as they journey through the uneven contributions
of the book — at times, strikingly intense, and at times, somewhat
ordinary.

Indian constitutional law suffers from a lack of serious writing. MC
Setalvad’s Indian Constitution 1950-65 portrays the brilliance of a
practising attorney general. HM Seervai’s Constitutional Law was
incomparably analytical before it became acerbic and died for want of
editions. Mohammad Hidayatullah’s project for a Halsbury on
constitutional law failed. Indian academics like PK Tripathi and
Upendra Baxi provided sporadic constitutional consciousness. The new
law schools have produced brilliant researchers and writers without
the help of national law school teachers (including the ubiquitous
Madhava Menon), along with Indian scholars abroad and, of course,
foreign scholars offering sustained and unsustained interest (HCL
Merillat, Marc Galanter). This book is by the new “brood”, as I call
them, and it showcases their most imaginative scholarship. No
anthology of essays on India’s Constitution is to be more treasured
than this book. But beware of the title, it is not a handbook of the
Indian Constitution — just a collection of damned good essays by
thoughtful writers.

There are two parts to Indian constitutional law. The first is
constitutional legal doctrine, entirely been created by lawyers and
judges. Academics have played no role whatsoever. Decades ago, there
was some critique by the Indian Law Institute, which collapsed as it
was under judicial control. Indian judges like to be praised and
resent non-appreciation to the same extent as Supreme Court judges do
not like to be called “Your Honour”, preferring “My Lord”. The second
aspect of the actual working of the Indian Constitution is in the
hands of politicians, administrators, businessmen, corrupters, the
corrupted and the like who feel they can buy and sell parts of the
Constitution. There is no point pretending that there is some kind of
morality binding the Constitution. This is what we preach when we use
words like “constitutional morality” or the “real underlying of the
Constitution”, as this book urges. Of course, as against
constitutional predators, there are good people faced with horrible
choices to which they succumb. This book is blind to those concerns.

We hope, we pray, but India’s Constitution (peace be upon it) is
sinking, exploited to the maximal extent in every unscrupulous
direction — rigged and violent elections, non-functioning of
Parliament and Assemblies, a judiciary which suffers from ordinariness
subject to exception, a violent and sexist society, vulnerability at
every level and rampant corruption. Spin as many doctrines as you like
but if you can’t see the collapse, you are blind. I am not saying that
the rule of law texts (including institutional moralities) should not
confront the political, bureaucratic and judicial texts and pull them
up. They must. But it’s going to be an ever more daunting task to
avoid shreds of the Constitution from being bought and sold,
humiliated and destroyed. Ruma Pal (quoting Seervai) reminds us, like
a candle in the wind, that power is not property.

I now turn to the book. Was such a thin discussion on administrative
law necessary? Should fiscal federalism have been left incomplete? Or
trade and commerce limited to issues of compensatory tax? Is there any
point in picking out an unimportant case on “pith and substance” for a
lecture on legislative competence? Can the large canvas of service law
be impressed with such angularity? Can we say that from 1980 the
Supreme Court, rather than constitutional amendments, became the arena
of change? And what of the reservation amendments (1995-2003)? Is
there really a growing respect for international law, or is it pick
and choose? My friend Harish Salve has a bone to pick on the
Mullaperiyar case, which we both lost. Isn’t the old controversy about
tribunals over? Baxi’s extravaganza always delights and should find
its place in constitutional history.

I read and continue to read the book. What makes the going difficult
is its uneven tone — it’s sometimes comprehensive, sometimes dilatory
and sometimes, a researcher’s personal agenda.

For me, the Constitution is the site of struggle — to preserve it,
make something of it and allow those engaged in a struggle for dignity
and opportunity to use it.



Rajeev Dhavan is a senior advocate at the Supreme Court

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Avinash Shahi
Doctoral student at Centre for Law and Governance JNU