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Distilled Wisdom

Usha Ramanathan

By K.G. Kannabiran
Orient Longman, New Delhi, 2004, pp. x 348, Rs. 550.00


“The Constitution, it may be mistakenly believed, represents a break with India’s colonial past. What is perhaps true is that it could have been a point of departure from colonial priorities and practice. But the pragmatism that characterized executive decision-making and functioning, and the continuity that dogged the legal and judicial system, turned the Constitution on its head, entrenching distortions that stayed with the system through what should have been an era of change. It should have been plain, we may think, that rights of the people and wrongs of the government ought to be consonant with the expectations that the freedom struggle fostered in us; but when it is the letter of the law interpreted through the lens of precedent set by colonial courts which determines the course that is set for us, there is evidence that the relevant past of the freedom struggle has been wilfully relegated to a zone that is ruled by amnesia. And with that historical background absent from the understanding and interpretation of the Constitution, it is no surprise that “the institutions under the Constitution were looked upon as a continuation of the colonial system of administration”(p. 22).   Even the Constitution makers had distorted the past, for witness this: “While debating the Constitution of independent India, not one member proposed that all the repressive laws enacted and repeatedly used against the people should lapse with the coming into force of the Constitution. This task was delegated to the executive under Article 372, and the executive adopted all the laws passed by the British without much thought.” And, “this,” as Kannabiran tells us, “was not a lapse. The political party that was elected to govern genuinely felt that they were successors to their colonial masters” (p. 23).   This is Kannabiran, a lawyer who believes in civil liberties; who has had a running battle with the Indian state against the lawlessness represented by fake encounters; who has worked at constitutionalizing and humanizing state power; who has taken positions against non-state violence while determined and sure in his opposition to the state unleashing terror even in supposed retaliation, for the answer even to “mindless killing and destruction … cannot be the abandonment of governance and civilized conduct on the part of the state. Impunity is never the answer. This sanction of impunity throws into question the legitimacy of governance and order and points to decay in the system. … Unless ...

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