ICLP turns two years old: Some rambling thoughts

I began this blog two years ago, on 2nd August, 2013. With a significant amount of help from friends and strangers, who have freely given of their time to write guest essays (some after months of relentless nagging), the blog has managed to average a post every four days, covering contemporary constitutional developments as well as bringing an analytical approach to settled constitutional jurisprudence. Through it, I’ve met new people who are now close friends, and I’ve had many an enriching discussion over email, and in the comments section (although I’d like the latter to be much more than it is presently).

I began this blog for two reasons. The first was the realisation that there is a near-complete absence of engaged discussion around Indian constitutional jurisprudence, discussion that takes text, doctrine and precedent seriously. As anyone who has studied any aspect of the Indian Constitution will testify, for a number of areas, Seervai’s treatise remains the starting and end point for analysis. For reasons that I cannot entirely understand, it seems that over the last thirty years, Indian legal academia (with a few notable exceptions) has abandoned its primary tasks: to analyse the Constitution as a legal (and not simply political document), and to scrutinise the jurisprudence of the Supreme Court from the standpoint of constitutional interpretation – i.e., subjecting the Court’s decisions to the standards expected of a constitutional court, which include a serious engagement with the text of the Constitution, its historical and philosophical foundations, and the Court’s own precedent. We have a lot of academic work that takes an external view of the Court – that focuses entirely on outcomes, and treats them through the lens of politics, or sociology, or general societal well-being, but simply ignores what reasoning the Court is employing to arrive at those outcomes.

I think this is a problem for two reasons. First, it has led to a disproportionate focus on those parts of the Constitution that are political big-tickets. We have reams of scholarship focusing on the PIL, much of it dealing with whether PIL “works”, to the extent that the Supreme Court has even gained (an entirely inaccurate and dangerously misleading) reputation of “judicial activism” because of it. There is a lot of scholarship focused on reservations and on secularism, two other political hot-potatoes. By contrast – and this is simply within the narrow contours of Part III – core civil liberties such as the freedom of speech and expression, the freedom of association, the freedom of conscience, freedom from discrimination, core personal liberty (against imprisonment and detention), and the horizontality of rights, are relatively ignored (again, with a few exceptions). Beyond Part III, there are vast swathes of the Constitution (such as local government, legislative competence, and inter-state trade and commerce, to take three examples), that are simply not written about from an engaged, analytical perspective. This not only harms the prospect of having a deep understanding of the Constitution, but – as I pointed out above – also ensures a highly distorted view of the Court as an “activist” – and even, socially “progressive” institution.

The second – and to my mind, bigger – problem is that it ensures a complete disconnect between the academy on the one hand, and the bar and bench on the other. If legal scholars don’t take what lawyers and courts are doing seriously, then there is no reason why the latter should take academics seriously. If a lawyer wants to make a constitutional argument before a judge, or if a judge wants to understand a legal issue more deeply, abstract philosophising or sociological critiques of the court (important though they are in their own right), are not going to be helpful. But in the near-absence of serious legal scholarship, lawyers and judges will not be able to engage with academia even when they want to. I should make it clear that I’m not in any way discounting the need for critical theory (I would place myself firmly within the critical theory tradition). What I am saying is that critical theory cannot assume away the existence of court judgments; and in fact, the best critical theory has always strongly engaged with the reasoning of courts (see Kennedy’s seminal article, or the writings of Alan Norrie).

More importantly, academia’s abandonment of doctrinal engagement has ensured the erosion of the only possible effective check upon the judiciary. If you look at the US Supreme Court, for instance, the day after a constitutional judgment comes out, you can see myriads of scholars sinking their teeth into it (including through blogs such as Balkinization and SCOTUSBlog) , picking apart every sentence, every word, every comma, and critiquing it from the standpoint of constitutional reasoning. Similarly, in other common law jurisdictions such as Canada or the United Kingdom, the judgments of Courts are subjected to rigorous and serious academic scrutiny. This ensures a measure of accountability: judges who know that their opinions are going to be held to the highest standards, will take all due care to see that they write the best possible judgments, with reasoning that can be defended under the most exacting and severe questioning, and eschewing surplusage. Consequently, judgments from those courts are well-researched, closely argued, and for the most part (whether you agree or disagree with the outcome), deeply thought-provoking and a pleasure to read. Now consider India: last year, when Justice Dipak Misra of the Supreme Court delivered the “Make-Up Artists” judgment, he simply ignored an inconvenient statute and rode roughshod over existing law to push through a “progressive” outcome. This judgment was hailed in the newspapers for being progressive, and nobody thought to question the learned Judge on his blatant evisceration of existing law. I can multiply examples, but my basic point is that if we are at a stage where the Supreme Court, on multiple occasions, considers itself free to ignore the law, to make up stuff as it goes along, to ignore precedent, to create new doctrines out of thin air – all to achieve popular outcomes, then there is little point in having a Constitution in the first place. And I do feel that a substantial chunk of the responsibility for getting us to this stage lies upon the shoulders of the legal academia, for its abandonment of critical engagement with the Court’s jurisprudence. Now, more than ever, we need a multiplicity of forums where the legal academia engages in rigorous critique of the Court’s legal and constitutional reasoning. This blog is an attempt at creating one such forum.

The second reason why I started this blog was a growing sense that academic scholarship is increasingly being pushed within paywalled gardens. For instance, the recently published Unstable Constitutionalism: Law and Politics in South Asia, of which I would dearly like to own a copy, is priced at 137 dollars. Professor Tarunabh Khaitan’s just-published A Theory of Discrimination Law is priced at 60 pounds. It costs six dollars to “rent” a Modern Law Review article for 48 hours, 15 dollars to get access on The Cloud, and 38 dollars to have it as PDF. These prices are ridiculous and absurd. They ensure that scholarship will remain within the four walls of university libraries – and only those universities that are rich enough to buy books, or to subscribe to online databases, will be able to provide their students access. It is, of course, not coincidental that these universities tend to be extremely expensive, and cater to a very select class of students.

The issues with the snowballing prices of access to academic scholarship are well-documented, and I don’t need to recount them in detail here. I think that the only push-back against this is a strong and sustained open-access movement, in which blogs have to play an integral role. Of course, I’m not saying that a blog post can be a substitute for the rigour and detail of a peer-reviewed article. But I do feel that a thoughtful and well-researched blog post can be the next best thing, and fulfill the purpose of academia: to present a clearly conceptualised and thought-through argument (backed up by sources), which initiates or joins in an important conversation. This blog is an attempt to create that as well.

Over the coming months and years, I hope to continue in the endeavour towards achieving both goals, and I especially hope for more discussions in the comments section (please, if you’re reading this, and if you read this blog regularly, do consider adding to the debates by commenting with your thoughts 🙂 ). My deep gratitude to all the guest post essayists, the commentators, and all who have taken their time out to read the writing on this blog. I hope that we can all continue to engage critically with the constitutional jurisprudence of the Indian Supreme Court, in forums that are free and open to all.

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4 Comments

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4 responses to “ICLP turns two years old: Some rambling thoughts

  1. SGS

    It is always a pleasure to read blogs about constitutional interpretation, especially given that, as you point out, there are such excellent resources available such as the official SCOTUS Blog (one of the contributors has taught law at HLS for more than twenty years), and Volokh Conspiracy (Eugene Volokh is a First Amendment expert and professor at UCLA).

    However, as I have requested you previously, please compare the writing at those blogs, and how essays here are written. The American blogs in no way dumb down content, but they eschew jargon and legalese and the “hereinafter insofar as learned judge has essayed to discern” kind of writing. I once again request you to write in a similar way.

    And congratulations on completing two years – all the best and keep writing.

  2. Dear author,
    Thank you for this free repository of priceless knowledge and insightful discussion. I find the opinions on this blog of a much higher quality than many highly priced treatises on constitutional law and I couldn’t agree with you more about how we need to make quality scholary work more freely accessible.
    I wish you best of luck and hope you continue to find time and energy to post on the blog.

  3. Pingback: ICLP Turns Three :: Thoughts on Legal Scholarship and Access to Courts | Indian Constitutional Law and Philosophy

  4. Pingback: ICLP Turns Four :: Some Thoughts on the Office of the Chief Justice and Other Supreme Court Miscellany | Indian Constitutional Law and Philosophy

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