11 February 2019

[Note] On Relying on the Constitutionalism and Institutions...

We didn't hear as much about constitutional law(yers) even a few years ago because we had relative stability. That was a good thing. Constitutional law is not meant to be a spectacle: it's stodgy and you don't ordinarily look at it closely except when things go wrong.

It's been in focus in recent years. Not just in India but across vast swathes of the world. Not coz we're negotiating the creation of a better world. But coz we're exploring the limits of power. We're testing whether checks and balances work; we're finding they don't always.

So many of us had faith or hope that institutions backed by constitutions would uphold law and establish fairness. So that we'd not be saying #neveragain once more. That hope has largely failed us.

The rule of law, we're having to learn once again, may mean nothing when the law is flawed, when institutions fail... And institutions can fail not just because of those who people them but because they apply the rule of law.

There are no easy answers to constitutional issues or institutional problems. There shouldn't be quick fixes... they're invariably bad fixes.

Not everything is meant to be a breaking-news ticker. Not everything has a single-point solution as sections of the media would seemingly have us believe. Neither the law nor an institution alone can or will be a saviour.

We need nuance, and we need to be able to acknowledge and engage with complexity. Now more than ever.

We are endlessly told that due process is important as is the rule of law, and it’s true that they’re important. What’s also important is to ask what constitutes the rule of law, who frames laws, how… 
Whatever comes next, if the promise of the Constitution is to be upheld, it is imperative that legal processes be devised keeping the most vulnerable in mind and ensuring that they are not sidelined or marginalised. 
There has never been any doubt that the rule of law can create social structures and impart certainty in social relations but it doesn’t follow that such structures should be created or that they are justifiable. .... Social order is not always social justice. 
...as I've argued not so long ago in relation to the historical baggage of 'due process' and the asymmetries which privilege generates.

For adulation of legal process, the rule of law, & the grid of institutions which form the constitutional framework of the state to make sense, we must critically assess how they work & how power is distributed.

So far, we've spectacularly failed to engage with such issues.

Fin

(This post is by Nandita Saikia and has been cross-posted from SocMed.)

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