Blog Blog 3 - Reflections

Reflection: Constitutional Resilience in South Asia

by Shree Agnihotri

The edited collection explores extensively the related themes of stability and resilience in the constitutional democracies of South Asia. The collection attempts an equitable focus amongst the South Asia countries by taking special effort to include and study the constitutional institutions, phenomena, and actors from countries that are not as frequently studied by constitutional scholars.

Scholarly discourse on South Asian constitutional studies invariably operates in the shadow of the idea that the liberal democratic model is inherently western, using South Asia as a placeholder for examples of nascent and/or decayed democratic states. For a scholar studying South Asia, then, the options are either to adopt the existing framework despite its simplistic implications, or to take on the mammoth task of constructing a matrix of alternative vocabulary to define and theorise the South Asian experience.

The collection offers a much-needed respite to the field in this respect. It lays down a promising framework for future comparative studies involving South Asia. This conscious attempt, that the editors call a ‘slow’ approach to comparison, is aimed at sharpening the focus on South Asia as an understudied region with a rich history of constitutional resilience while maintaining the salience of each individual jurisdiction on its own terms. The result is a humble, nuanced beginning to an ambitious project. By recognising the importance of building a strong foundation of single-state studies for the larger project of theorising a South Asian jurisprudence, the collection manages to avoid, what would otherwise have been a premature conception of South Asian constitutionalism.

The approach has allowed the contributors to capture in great depth and with better clarity the systemic, cultural and historical trends of their jurisdictions. Parts II (Constitutional Design) and III (Federalism) respond to the urgent questions concerning constitutional design and principles in Sri Lanka, Bhutan and Nepal. This is not to say that the collection is overtly theoretical in its analysis. On the contrary, a significant portion of the book is devoted to studying the role played by institutional actors in the evolution and functioning of their constitutional systems. Parts IV (The Political Branches), V (The Judiciary), VI (Fourth Branch (Guarantor) Institutions), and VII (The Military) deserve special mention for the thorough and sustained analysis of the systemic arrangements that have contributed to constitutional resilience over time in India, Afghanistan, Maldives, Sri Lanka, Bangladesh and Pakistan.

A further advantage of this approach, and one that is especially beneficial for comparative constitutional studies, has been in the simultaneous widening of the scope of study: contributors to the volume have used not just courts and legal judgments, but also other sources such as trends in institutional (executive, legislative, military, among others) activity, events and phenomenon to piece together insightful narratives about the legal and political culture of their chosen jurisdictions. This benefits comparative constitutional studies by opening a line of enquiry into jurisdiction-specific understandings of constitutional resilience, and brings to the surface the nuances such a study entails. More interestingly, in Part VIII, the contributors study the ‘people’ as important actors in the life of a constitution. Used often as a conceptual category, the people of a nation are conspicuous by their absence from contemporary comparative constitutional studies. The contributors to this collection, however, trace the contours of people’s participation in making a constitution resilient and highlight the relationship between the citizens’ lived experiences and the development of constitutional practice and culture in India.

Amongst the many nuances one is bound to catch on to when reading the collection, the most significant one, in my opinion, concerns the duality within the term constitutional resilience. As the editors rightly note, constitutional resilience may be negative or positive. Whereas its positive connotations indicate the ability of the institutional framework to respond to conditions of decay, constitutional resilience may also be used to refer to the resilience of institutions, practices, and actors against the ‘healthy evolution of constitutional democracy’.

This acknowledgment and the conscious study of the negative and positive connotations of constitutional resilience gives rise to two important questions to be explored for future research. First, it draws attention to the relationship between the resilience of desirable and undesirable resilience of structures and principles that affect the functioning of the constitutional order. One wonders if resilience works in a cyclical manner, whereby decay is inevitable, if only to provide a way for the regeneration and reassertion of the constitutional principles and structures. Or whether constitutional democracies, under certain conditions, constantly evolve to better adapt to threats endemic to their polity. If the long-term goal of the project is to arrive at a better theoretical understanding of constitutional history, problems, and phenomenon in South Asia as a region, some effort would have to be made to compare and contrast the various ways in which different countries within South Asia have responded to decay and generate a deeper insight into the value and workings of positive resilient structures and principles.

Second, the contributions in the volume give us the important insight that institutions and actors that look or function similarly may end up contributing to resilience in a variety of ways under different conditions and jurisdictional settings. Given the relationship between formal continuity and stability that constitutional theory relies upon, what does South Asia tell us about the role played by informal politics in sustaining the kind of constitutional culture fruitful for the resilience of desirable constitutional structures and principles? Although the volume does not, as a collective, make any normative claims about the most appropriate source of positive resilience, the historical tension between politics and law as sources of resilience will need to be explored and studied. Lastly, while the attempt at bringing in the ‘people’ as an important institutional actor is a welcome step in expanding the contours of constitutional studies, effort will have to be made in future scholarship to prevent the homogenisation of the ‘people’ under a ‘South Asian’ identity.

The contributions in this edited collection raise important questions and open significant avenues for research. More importantly, the collection makes an original contribution to the developing field of comparative constitutional law in a manner that includes a diverse range of voices and perspectives, an attempt that deserves recognition and appreciation.