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An estimated 4-minute read

The International Journal of Constitutional Law’s Coverage of Indian Constitutionalism (or the lack thereof)

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(Disclaimer: I should state at the outset that I have had two papers rejected by the International Journal of Constitutional Law, and entirely correctly: the first time was when I submitted an individual article as a third-year law student – naturally, it was of terrible quality; the second was a paper submitted as part of a group of papers for an India-themed symposium – the collection was rejected as a whole, probably because it was rather unbalanced – it had only five papers, two of which were on the death penalty).

The International Journal of Constitutional Law is the leading and most authoritative law review on comparative constitutionalism. It has been in existence for the last thirteen years, and publishes three or four volumes every year. From time to time, it publishes symposia either on a regional basis, or on a thematic basis. It is undoubtedly the leading forum for comparative constitutional conversations, from the academic perspective.

I’ve often used IJCL for my research and writing, but rarely come across work on Indian constitutionalism in the journal. After Madhav Khosla’s well-received piece on social rights, the first time I did so was when I chanced upon a footnote in another article, that referred me to Catherine MacKinnon’s piece in the ICJL on Indian sex discrimination law. This made me uneasy, for more than one reason. Apart from it being the first time, in years, that I had come across an IJCL reference to India, I was also struck by the fact that it was an American constitutional scholar, who – to the best of my knowledge – had no history of engagement with Indian constitutionalism – writing on a fairly nuanced and complex area of Indian constitutional law (I have a lot of problems with the content of that article, but this isn’t the place to go into them). It struck me immediately: couldn’t they have found an Indian to write about Indian constitutional law? 

I then undertook a survey of the IJCL archives, to find out pieces on Indian constitutional law and constitutionalism. This is what emerged:

  1. Vol. 1(3) has an article by Burt Neuborne on the Supreme Court of India: http://icon.oxfordjournals.org/content/1/3/476.full.pdf+html
  2. Vol. 1(4) has an article by Upendra Baxi on Dworkin and the Indian Constitution: http://icon.oxfordjournals.org/content/1/3/476.full.pdf+html
  3. Vol. 2(1) has an article by Vijayashri Sitapati and Arun Thiruvengadam on the Right to Education: http://icon.oxfordjournals.org/content/2/1/148.full.pdf+html
  4. Vol. 3(4) has a contribution by N. Santhosh Hegde as part of a judges’ round-table: http://icon.oxfordjournals.org/content/3/4/560.full
  5. Vol. 4(2) has a contribution by Catherine MacKinnon on gender equality under the Indian Constitution: http://icon.oxfordjournals.org/content/3/4/560.full
  6. Vol. 4(4) has Smita Narula reviewing The Wheel of Law: http://icon.oxfordjournals.org/content/4/4/741.full
  7. Vol. 7(3) has an article by Sujit Choudhry on ‘linguistic nationalism through constitutional design’: http://icon.oxfordjournals.org/content/7/4.toc
  8. Vol. 8(4) has an article by Madhav Khosla on social rights: http://icon.oxfordjournals.org/content/8/4/739.full
  9. Vol. 11(1) has a book review by Morag Goodwin, of ‘Corruption and Human Rights’, http://icon.oxfordjournals.org/content/11/1/265.full.pdf+html


Quite apart from the fact that I see no conceivable reason why Burt Neuborne, an American constitutional scholar, should have a piece on the Indian Supreme Court (again, was there no Indian to write about the Indian Supreme Court?), there are a couple of things that need to be noted. The first is that thirteen years of the IJCL have resulted in nine pieces on Indian constitutionalism. Out of these, two are book reviews, and one is a part of a judicial round-table. This brings the number of substantive pieces to six in thirteen years – an average of less than one every two years. Out of these six, in turn, two (1 and 2) are generic. I.e., four pieces on substantive constitutional issues in thirteen years, an average of less than one every three years. Let’s assume that I’ve missed a few – I’d venture to suggest that we still won’t get to an average of one a year. There has been no India-themed symposium in thirteen years (i.e., around forty-five issues). Given that India is the world’s largest constitutional democracy, I’d suggest that there is a rather serious problem of under-representation.

The second point I want to highlight is that out of the four substantive pieces, three have been written by scholars based abroad (two of whom are foreigners, out and out). The exception is Khosla’s piece (Khosla was at CPR Delhi when it was written). I am not for one moment advocating some variant of constitutional nativism or parochialism, but I do feel that there is something very seriously wrong when, in its history, IJCL has had one piece written by an Indian constitutional scholar, based in India, on Indian constitutional law.

(Again, I might have missed some pieces, so my figures may be off by a little – but as it stands, they are so microscopic, that I doubt it will make a difference).

To this I wish to add a brief point. During my time in the UK and the US, I took courses in comparative constitutional law at both universities. India was represented – as the country of PIL and of socio-economic rights adjudication. It was not represented – or minimally represented – on issues of civil and political rights, separation of powers, federal structures, emergency jurisprudence etc, issues on which we have detailed and complex jurisprudence. Going through the IJCL archives drives home a rather unfortunate realisation – beyond PIL and socio-economic rights, it seems that Indian constitutionalism is simply not a part of the global conversation. Part of the reason, of course, is probably that there are not enough Indians writing – and yet I cannot but help feel that institutions like the IJCL – which has “international” and “constitutional” next to each other – could do a little, or a lot more, when it came to issues of equitable representation.

Original author: gautambhatia1988
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