Book Review: Sunil Khilnani,Vikram Raghavan and Arun K. Thiruvengadam (eds),Comparative Constitutionalism in South Asia,Maneesha Tikekar (ed.),Constitutionalism and Democracy in South Asia;Political Developments in India’s Neighbourhood and Mark Tushent and Madhav Khosla (eds),Unstable Constitutionalism: Law and Politics in South Asia

Despite the fact that the roots of comparative constitutionalism can be traced as back as Aristotle, the field has got invigorated since 1990s as a result of constitution-making and constitutional reforms in many countries. Most of this literature emerged in African and post-Soviet context, eroding the hegemony of literature on liberal constitutionalism that developed in the first-world countries. This literature analyzes the interaction between societal variables (religion, ethnicity and gender) and constitutionalism and moves beyond the framework dictated by liberal constitutionalism. Even in some South Asian countries, there emerged few country-specific studies on constitutionalism, but the three books under review are the initiators of the field of comparative South Asian constitutionalism.

The editors of Comparative Constitutionalism in South Asia emphasize the similarities in the constitutions, political structures and legal systems of South Asian region. They are perturbed by the fact that legal scholars and judges in these states have been in the habit of looking to the West. The first chapter by Upendra Baxi challenges the formulation of South Asia which according to him was a ‘colonial invention’. Therefore, he prefers to use the formulation of ‘Post-colonial constitutionalism’. The second chapter by Sujit Choudhary explores the core question of the need and significance of comparative constitutional law. He attempts to answer this by analyzing the landmark Naz Foundation judgment by the Delhi High Court in 2009. He argues that the foreign judgments served as an ‘interpretive tool’ and thus developed ‘dialogical interpretation’ which helps to affirm a distinctive constitutional identity. The following chapters by Mara Malagodi and Richard Whitecross analyze the ways by which judges in Nepal and Bhutan have attempted to strike a balance between foreign and national experiences while interpreting the constitution. Contrary to the spirit of the editors, Gary Jeffrey Jacobsohn and Shylashri Shankar argue that a distant observer might be impressed by the incentives for ‘cross-national constitutional appropriation’ but those closer to the scene are aware of political and cultural differences between South Asian states creating hurdles for ‘legal transplantation’.

The chapter by T. John O’ Dowd is a comparative study of the discourses on freedom of expression in the USA and South Asia. He traces the similarity between the nineteenth century debate on restriction to freedom of speech between John Stuart Mill and James Fitzjames Stephen and the contemporary debates in South Asia.

The book attempts to break down the Eurocentrism of the field of comparative law and the aim of the editors is not just to begin a conversation among South Asian judges and scholars but also to offer insights into the persistent tribulations of constitutionalism. The project of breaking the Eurocentrism of the field of constitutionalism had already begun with the rich literature on constitutionalism in African countries and this book is certainly a step forward in this direction.

The foreword of Constitutionalism and Democracy in South Asia; Political Developments in India’s Neighbourhood mentions that ‘South Asia’ consists of Afghanistan, Bangladesh, Bhutan, India, Maldives, Myanmar, Nepal and Sri Lanka, leaving out Pakistan, a technical error, as the book does contain a chapter on Pakistan authored by the editor herself. The subtitle of the book is more appropriate to describe the contents of the book, which is devoid of any reference to the theoretical debate on relationship between constitutionalism and democracy, notwithstanding some discussion on the concept of democracy and the nature of state reflected in constitutions of South Asian states. The introduction begins by saying the South Asian region has witnessed significant political changes comparable to the Arab Spring, but did not receive any global attention. The return of democracy in Pakistan and Bangladesh, the formation of a Constituent Assembly in Nepal, the end of absolute monarchy in Bhutan, the adoption of new constitution in Maldives and Myannmar, the end of civil war in Sri Lanka, the pull-out of American and NATO forces from Afghanistan are the significant political developments that constitute both the backdrop and core of the book. India did not witness comparable developments, since democracy has been institutionalized in India, but the editor notes that democracy in India faces serious challenges from terrorism, militancy, left-wing extremism, corruption and political instability. The editor argues that Indian democracy continues to be a ‘functioning anarchy’ (adopting John Kenneth Galbraith’s 1960 quip). The editor clarifies that the achievements of Indian democracy cannot be overlooked, yet the challenges not only have lingered but also have compounded over the years. The editor emphasizes the centrality of politics for the ‘management of complex societies’ and argues that democracy is certainly the ‘best available form of politics’ in complex societies, such as South Asia. She also discusses the impact of ‘India factor’ on the politics of its neighbours.

The book is rich in its descriptive details of recent political developments in the region but there is no attempt to conceptually locate these developments. The book is inclusive in the sense that it also comprises chapters on Bhutan and Maldives which are ignored in the other books, perhaps because of their small size, population and influence in the international arena. It will be useful for not only researchers working on South Asian politics but to all those wanting to acquaint themselves with the politics of South Asian states. The readers will have to fend for themselves if they need to locate a particular concept as the book lacks an index.

The editors of Unstable Constitutionalism: Law and Politics in South Asia lament the uneven development of the field of comparative constitutionalism and the neglect of South Asia in discussions on comparative law. The volume deals with five nations—Bangladesh, India, Nepal, Pakistan and Sri Lanka. The editors adopt the framework of ‘unstable constitutionalism’, by which they mean that though most of the political actors in these countries are committed to the idea of constitutionalism, there is disagreement over the institutional form that can embody the form of constitutionalism. The formulation of unstable constitutionalism seeks to explain the variance between law and socio-political realities and how the law seeks to mediate this variance and strengthen the spirit of constitutionalism by ending the civil disorder, or to put it in other words: How does law work to fulfil its raison d’être of attaining stability? Moreover the editors argue that law can also shape socio-political realities and it is only in conversation between law and politics that we can locate the phenomenon of unstable constitutionalism.

The editors of the book emphasize the point that concerns of South Asian constitutionalism are divergent from constitutionalism in the West. While in the West, debates on constitutionalism deal with different interpretive techniques and role of constitutional courts, for South Asian states, the major concerns are questions of constitutional design and negotiation. They also assume that all the stakeholders in South Asia believe in the idea of a constitutional contract but are unable to agree on the terms of the contract. The editors emphasize that all the stakeholders believe in the idea of single state. They ignore the separatist movements in India and Sri Lanka. Moreover, the interpretative debates that the editors claim for Western democracies are very much alive in South Asian nations. How else can we understand the basic structure doctrine other than as an interpretive tool? This doctrine not only has been applied by India’s Supreme Court but also has spread to its neighbours Pakistan and Bangladesh.

The book is divided into three sections. The first section introduces the formulation of unstable constitutionalism. The second section of the book discusses the different forms and sources of instability. Mahendra Lawoti and Mara Malagodi attempt to trace the sources of constitutional instability in Nepal; Mohammad Waseem discusses the three forms of instability that plague the political system of Pakistan; M. Jashim Ali Choudhary undertakes the study of phenomenon of caretaker governments in Bangladesh and the instability resulting from it being declared unconstitutional. The third section of the book deals with mechanisms and institutions through which countries in South Asia react and respond to the instabilities. The chapters by Pratap Bhanu Mehta and Ridwanul Hoque discuss how the judiciaries in India and Bangladesh have expanded their role moving beyond legal formalism. The next three chapters deal with the theme of federalism and its potential to accommodate differences and thus attain political stability. The last chapter by Sudhir Krishnaswamy attempts to bring in judgments within the literature on federalism. He argues that judgments related to federal structure can be better understood through the formulations of ‘state-nation’ and ‘partisan federalism’.

The books under review ignore the debates on nationalism. The fact that constitutions are viewed as statement of national identity in most of these countries has been overlooked. The only exceptions are the two chapters on Nepal by Mara Malagodi and Mahendra Lawoti, who engage with the concept of nation-state and the tensions of competing nationhood in Nepal. Though most of South Asian countries were erstwhile colonies, most of the chapters do not explore the colonial legacy and its impact on constitutionalism in South Asia. The editors and authors of these books have not entered into conversation with the existing literature on transformative constitutionalism, insurgent constitutionalism, postcolonial constitutionalism (with the exception of Baxi) and post-liberal constitutionalism. There is not a single chapter dealing with the issue of gender, which is appalling, given the fact that the last decade witnessed the publication of three books on the theme of comparative constitutionalism and gender.

The books do not explore how the idea of liberal constitutionalism cannot explain much of what is happening in South Asia. Liberal constitutionalism is premised on the idea of limited state power, but in most of the South Asian countries, the state’s pervasiveness in society cannot be ignored. Does the politics of South Asian states offer us the opportunity to redefine the concept of constitutionalism? This can be a significant line of inquiry for any further research on South Asian constitutionalism. This can be possible only when the research on South Asian constitutionalism enters into conversation with the existing literature in other regions of the world, including the West, not only because that literature has something to offer to the study of South Asian constitutionalism but also because analysis of South Asian constitutionalism has a lot to offer to the study of constitutionalism elsewhere.