Satyagraha for Constitution-as-commons

The events unfolding on the streets of India signal the emergence of a new language of citizenship and a new language of the Constitution. This has been in the making over the past decade and a half. It has taken its time as fashioning a new language and grammar of justice is a process that has to distil public anger against the criminal dispossession by this government. The public face of criminal dispossession brazenly glares down at us: from dwellings and homes, savings, education, and now voting rights. 

This is the time when it all comes together — through the fearless confrontation of young protesters with a disproportionately weaponised police; when only those political leaders, who are out on the streets engaging with the armed state in the same manner in which these (extra)ordinary protestors are, retain public credibility and legitimacy; when lawyers preparing to defend resisters (and themselves) know that they will be huddled into vans and booked for practising their profession. This is the time when self-styled monarchs who took possession of their seats of power, grabbed through a daylight robbery of votes, can no longer sit on them, but instead hide behind them, cowering in fear.

This is also the time when judges repeat endless platitudes about how the only protests deserving of judicial attention are ‘lawful protests’, and assert meekly (within the enclosure of the court) that they are bound by ‘judicial discipline’ in considering the lawful right to bail for prisoners such as Umar Khalid and Sharjeel Imam. They make this assertion without stopping to reflect on the unlawful mayhem let loose by the ‘rulers’ against whom ‘lawful protest’ is an oxymoron. How does one ‘lawfully’ challenge the government’s politics of maiming, when what has been maimed is the law and courts? To protest is unlawful under authoritarianism; it is lawful in a constitutional democracy. The ruling diktat has labelled the common citizen as an andolanjeevi — a new extra-statutory category of criminal — who stands accused of the crime of being a citizen who knows their rights. That judges and courts fail to redefine the fundamental meaning of ‘judicial discipline’ and ‘lawful public action’ at a time when the Constitution is under siege is tragic.

Duty to the nation

This is the country where satyagraha was born and takes new forms at different times. We have now reached a turning point as a country. This fire in our belly must be quelled; not through the use of pellet guns, lathis, and courtly intimidations, but through peaceful protest. It is our birthright. 

The Constitution is our commons. It provides the normative ethical framework for citizenship and shared humanity. It speaks to a just future that guarantees dignity, self-respect, autonomy and solidarity while being mindful of discrimination and structural violence, that must be eliminated. Dignity and shared humanity lie at its core — a guarantee of citizenship as birthright. This idea of the ‘Constitution-as-commons’ helps in bridging different pathways to imagine an idea of justice. In elaborating on this, we need to bring together popular imaginations of justice that we see opening out before us, predicated on the constitutional convivialities made possible by this popular uprising and its precursors. 

Courts and judges need to understand this ‘constitutional jurisprudence from the streets’ and its interpretive methods through a welcoming acknowledgement of the pedagogic import of this collective constitutionalism. This shift in the country has been nothing short of a glimpse at a utopia; therefore, it is important, theoretically and politically, to trace the contours of this possibility — not just for India, but through the Indian experience for a more holistic, pluriversal understanding, without losing sight of the fact that justice is always spatially rooted. That space is now no longer the reductionist enclosure of the court, nor even the fortified monument that is Parliament, but the ‘outside’. The streets, under the open skies, is where the Constitution resides today.

Conviviality and the cultural politics of care, as the conscientious resisters demonstrate to us today, can only be located in the context of civic resistance against state violence in India. This politics of care, of which protest and resistance is part, challenges crimes by the state. The resisters out on the streets today are those who hold Gandhi’s talisman and Ambedkar’s Preamble in their fight to restore to the people of this country control over their lives. 

Kalpana Kannabiran is Advanced Fellow, Vienna Centre for Advanced Studies, University of Vienna. Views expressed are personal