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Constitutionalism: Exception as norm

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NOVEMBER PRINT ISSUE

Trijeeb Nanda

Reaffirming faith on Constitutionalism, this year, law day was re-christened as Constitution Day. Constitution is a document, which dictates the past, defines the present and shapes the future of the country. It’s the religion of the state. All the entity under the polity defines them and derives their validity from it. In a constitutional democracy Constitutionalism is the only way of life, and there exists no life beyond or above it.

Constitution is indeed a law, but distinct and different from other law. In the form of legal rules and principles it encompasses the common will of people. It’s a union of law and politics, and both a political and legal document. Constitutionalism requires both rule of law and rule of politics to be in consonance with the Constitution.

Curiously, constitution (the Grundnorm), which is the product of a long historic revolution, doesn’t encourage revolution. It recognizes the right to resistance of the government against the people but doesn’t confer the same right on the people against the government. By this constitution demands the adherence of people to Constitutionalism without any exception. However the mixture of law with politics leaves wide scope for its stake holder to practice mischief, specifically in the name of Constitutionalism.

Role of Law in Rule of Life

Relation of human life with law is of antiquity. However, elevation of law as the ruler, in its present form, is the outcome of a long process. In which it has adopted various forms without changing its role. The role of law has always been to limit the autonomy of man by controlling and regulating his behaviour. Thus, law is always used as a means to an end; as ‘law of nature’, it justifies the act of mighty, and as ‘natural law’, the power of reasoning. After the emergence of nation-states and positivization of law, law became the language of state and a means for serving its wishes. But in the contemporary modern democracy, governed by the constitution, state became the subject of law. A paradigm shift in the rule of governance, where state became a means to serve the wish of law (Constitutional Law). Through consensus, interest was attributed to law and its supremacy was established.

The establishment of Constitutionalism essentially diminished the relation of law with politics. Law and politics became one and the same thing. It also changed the nature of law from a ‘mere means’ to an ‘end in itself’.

Rule of Law and Constitutionalism

The constitution inter alia embodies the principle of rule of law; i.e. equality before law and equal protection of law to every person. Thus, very often, ‘rule of law’ and Constitutionalism is used interchangeably, but there exists a fundamental distinction. The execution of Bhagat Singh and many others, in pre-independence era, was also according to the rule of law. But, now the principle rule of law can’t be understood in isolation, it must be in consonance with the constitution. Thus, under Constitutionalism neither martyr like Bhagat Singh nor can a terrorist be executed in contravention with constitution.

The Constitution declares its goal in the preamble, enshrines individual human rights as Fundamental rights and certain principles and policy as directives for the state. To materialise these proposition, it entrusts the legislators with legislative authority and the executives to execute the same. And to secure the exercise of authorities in compliance with the constitution, it empowers the higher courts to review the action judicially.

However, the ad verbatim retention of the colonial norms and the construction of the constitution with due respect to the precedent of the common law courts critically challenges the claims of Constitutionalism. The major penal laws, role of enforcement agencies, principles like eminent domain and sedition were kept intact in the constitutional democracy. Even the judiciary judicially justified these retentions; completely ignoring the values of freedom struggle and admiring the judicial precedent of British colonies.

The State of Exception in Constitutionalism

Suspension of constitution is a part of Constitutionalism. As an exception to constitution, emergency provisions are enacted to control abnormal situations. The government is conferred with the power to pronounce the proclamation through a formal declaration and the only justification for the suspension is enforcement of Constitutionalism.

This principle of necessity has widely been invoked to enforce political wishes through law. Adolf Hitler invoked the emergency provision of the German Constitution, and never revoked. Thereby, established a permanent state of emergency, where the role of law was to establish the rule of law of Hitler. In India also it has been used as a tool to satisfy the political wish. Suspension of Constitution inevitably pushes the human life into a state of exception. It essentially creates an abnormal situation where role of law is to make the life of the normal people difficult. That’s why it be the act of Hitler in Germany or the act of Indira in India in the late 70s, invariably invites condemnation without any exception.

Apart from this constitutionally recognized and defined exception, i.e. formal declaration of emergency, the political history of the modern democratic polity indicates about the evolution of new technique for employing exception. Here, law employs exception neither by invoking nor by suspending the constitution. Nor it is formally promulgated as emergency. The role of law in North-Eastern states and other so-called disturb areas of the country are the examples of employment of the new technique. In these areas, the operation of rule of constitution is informally revoked by the rule of exceptional legislation. The exceptional law like AFSPA and UAPA are nothing but law of emergency, which essentially requires an abnormal situation. However, these extra-constitutional emergency legislations employ exceptions in advance and not as a result of any necessity. In cases of necessity, exception is employed for a temporary period to deal with already occurred extra-ordinary situation.

The judicial justification of this permanent state of exception through constitutional interpretation by the judiciary amounts to normalization of an abnormal situation as a part of Constitutionalism. This, yet to be defined exception, has become the technique of governance under various constitutions of the world.

Extra-Judicial Execution

Constitution guarantees right to life of every person without any discrimination, and categorically prohibits it‘s deprivation except according to procedure established by law. But the people killed in encounter by security forces are not availing this protection. These executions are popularly known as death by encounter, more specifically police encounter. Where security forces claims that, the execution is the result of exercise of self-defence and those executed are terrorist, extremist, Maoist etc.

Even if the claim of self-defence by police is true, the law requires the judicially established procedure to be followed for justifying the execution. The security forces are neither conferred with any impunity nor exempted from criminal liability by any specific exception. Furthermore, the rule of law doesn’t discriminate between a terrorist or Maoist with any other person. But in every encounter death, the security forces endeavour to establish that those killed are terrorists or extremists, and few civil rights activists says they are not. The claim and counter claim becomes the ‘fact in issue’ and this irrelevant ‘question of fact’ suppresses the relevant ‘proposition of law’ that law of this country doesn’t permit “anyone to kill anyone”. Thus the ‘rule of practice’ has successfully replaced this proposition of law under the normal operation of the constitution.

The informal suspension of constitution by perpetual state of exception and extra-judicial execution, without any formal declaration, seems to have become the integral part of Constitutionalism. In which the constitution is being used as a political document to enforce the political will through judicial platform. Where the political will is to eliminate all those who don’t integrates into the system or to whom the system doesn’t integrate.

(Trijeeb Nanda is a lawyer and a Research Fellow at Tata Institute of Social Sciences, Mumbai (Criminal Justice Fellowship). He is currently working on Access to Justice for the marginalized and vulnerable undertrial prisoners in Odisha)
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