Tuesday, August 6, 2019

Sharafi on rule of law and constitutionalism in India

Our blogger Mitra Sharafi, University of Wisconsin, has posted the paper, "Parsi Legal Culture, Constitutionalism, and the Rule of Law" on SSRN. The piece is forthcoming in a volume edited by Nawaz B. Mody. It began life as the conclusion to Sharafi's book, before being removed and expanded into its own separate article. Here's an abstract:
Parsi legal culture has played an important role in the constitutional life of modern India, helping nationalists pivot from extra-legal resistance to the business of running a state. This article suggests that Parsi legal culture reinforced constitutionalism and the rule of law in India. As ideals, the latter two concepts impose restraints on the exercise of power. During the late colonial period, elite Parsis led the early "constitutionalist" phase of the Indian National Congress movement (1885-1919) and insisted on working for change through existing state processes and structures. Early Congress leaders Dadabhai Naoroji, Pherozeshah Mehta, and Dinsha Wacha were products of Parsi legal culture. They were turning outward--for the benefit of all Indians--the law-focused strategy that had worked so well during the preceding half-century for their own community. Their approach was abandoned as the nationalist movement became a mass movement circa 1920 under Gandhi's leadership. The values of Parsi legal culture and the Congress constitutionalists were relegated to the back burner from the 1920s until the late 1940s. However, they were brought back to life upon independence, particularly in the Constituent Assembly that created the Indian Constitution (1947-50) and in the interpretation of the Indian Constitution after 1950. The early Congress model of "constitutional agitation"fed into what B. R. Ambedkar would call India's "constitutional morality." Both required the relinquishment of "the bloody methods of revolution" and of Gandhian civil disobedience alike. Early independent India could re-activate constitutionalism and the rule of law as ideals because these ideas were preserved readymade within a particular politico-legal tradition, albeit one that had fallen out of favor in the decades before independence. This tradition was heavily influenced by Parsi legal culture.

This article also answers the question of whether rule-of-law values were inescapably colonial: they were not. A history of tension within the colonial state highlights the distinction between those who believed there had to be restraints on the exercise of power, and those who wanted to rule without law. Debates among colonial state actors and the harnessing of rule-of-law values by the early constitutionalists reflected the distinction between the projects of colonialism and the rule of law. The British initially used the rule of law to justify colonialism because it was there, neatly packaged and ready to ship, in metropolitan thought and political culture. They underestimated the concept's autonomy and its potential to eat away at the foundations of empire. This insight also addresses the question: how did a population that achieved such affluence and success under British rule reposition itself in decolonisation mode? In fact, there was no necessary contradiction between Parsi legal culture and the rejection of colonial rule. Through its embrace of rule-of-law values and constitutionalism, Parsi legal culture helped build a solid foundation for the newly independent polity.
Further information is available here and here.

--posted by Mitra Sharafi