Scholars in Conversation | Prof. Nivedita Menon with Radhika Chitkara

The Scholars in Conversation series features interviews with academics across diverse disciplines and geographies. Anchored by NLSIU faculty members, these conversations explore the work of leading voices in their fields in order to bring academic insights to bear on public discourse. 

Earlier this year, Prof. Nivedita Menon visited the NLSIU campus to deliver the MK Nambyar Annual Lecture titled ‘Insurgent constitutionalism and radical frames of citizenship’. The occasion offered a fecund opportunity to sit down with her for a wide-ranging conversation on a host of contemporary political dilemmas facing democratic struggles for justice. The conversation draws from Prof. Menon’s scholarship on rights and constitutionalism over the years, while charting intersections between feminist thought and praxis, civil liberties, ecological justice, and decolonialism. The conversation that follows has been minimally edited for brevity and style.

In your 2004 work, Recovering Subversion, you wrote, ‘we [feminists and other social movements] may have reached the limits of the emancipatory potential of the language of rights which gives us an entry point into the realm of law’. In 2023, in Secularism as Misdirection, you state, ‘the Constitution no longer lives the singular life that liberal constitutionalism laid out for it, but has become for very many a call to radical transformation as well.’ How can we make sense of this journey in our relationship to rights and constitutionalism over the past twenty years or more?

I think there is a key difference between claiming rights from the state, as many movements do—the disability rights movement, many kinds of feminist claims, workers’ rights—and what I term ‘insurgent constitutionalism’. The language of rights is framed and limited by the language of Law. Most rights-based movements demand new laws to recognise their claims, and often, their very identity. In Recovering Subversion I had argued that in postcolonial societies such as ours where Law was a product of the exigencies of colonial administration, it did not have the same emancipatory force it might have had in Europe during the transition from feudalism to capitalism. But in general, counter-hegemonic political practices continue to reflect the belief that the processes of the Law can be forced to reflect the ideal of justice, however imperfectly, incompletely or unwillingly. I still hold that we need to accept that at this historical moment law has limited capacity to pursue justice. If injustice is understood as constituted by the unequal dynamics of power, then Law can touch injustice only to the extent that power is juridically derived. But as we know, after Foucault, modern forms of power do not simply oppress; they produce and regulate identity. Law is an important technique by which this is achieved. Law cannot, therefore, be expected to ‘emancipate’ in any straightforward way. Legal recognition simultaneously involves regulation of identity—we can see this in operation with caste-based reservations, for example, and with disability rights. In the latter case activists have pointed out the legal compulsion to prove, in specific and sometimes humiliating ways, the kind of disability on the basis of which rights are being claimed. For instance, a polio-affected woman had to take a photograph of herself with one salwar leg rolled up to show she wore calipers, in order to ‘prove’ her disability.

Rights are constituted by the values derived from specific moral universes, and today multiple visions of justice have come to co-exist, all laying claim to universality. In other words, there is a distinct lack of identification between the multivalence of ‘justice’ and the force of Law that must tend towards eradicating multiplicity.

How does ‘insurgent constitutionalism’ relate to this idea of ‘legal constitutionalism’, if one may call it that?

Insurgency implies rising up against established authority (not necessarily with arms). By using the term ‘insurgent’ alongside ‘constitution’ I am reformulating an argument I made earlier in the context of my critique of rights language. By ‘constitutionalism’ I refer to a specific method adopted by modern democracies for safeguarding the autonomy of the individual self. This objective is achieved by a process of enforcing universal norms that marginalise, render obsolete, and delegitimise contesting worldviews and value systems. This particular method of organising democracies has a specific history and arose in a particular geopolitical location, that is, in Europe in the seventeenth century. The drive of constitutionalism, then, is towards the erasure of any kind of normative ethic which differs from its own unitary central ethic. The dilemma that faces radical politics is what I called the ‘paradox of constitutionalism’—that is, the tension in which the need to assert various and differing moral visions comes up against the universalising drive of constitutionalism and the language of universal rights.

However, that does not exhaust what constitutions do. The hope inspired by the idea of a constitution as the basis of a democratic state is as vibrant in the twenty-first century as in the mid-twentieth, when the first wave of decolonisation took place across the global South. The crucial difference here is that the constitutions of the North in a sense marked a closure of and an end to political ferment. The postcolonial moment inaugurated in the mid-twentieth century is very different. The later constitutions tend to be documents about open futures based on both democracy and social justice. They are also more likely to maintain the tension between competing interests rather than dissolve them in one direction or the other.

What we have seen with the Indian Constitution is that it no longer lives the singular life that liberal constitutionalism laid out for it, but has become for very many a call to radical transformation as well. The document has broken out of the confines of the liberal imagination that attempts to keep it in the safe custody of constitutional experts. There are two reasons for this. First, the Indian Constitution is not merely a liberal document in any sense. The debates in the Constituent Assembly show that it emerged out of a variety of political opinions from Left to Right. Also, emerging as it did from a mass anti-imperialist struggle, it tried to balance individual and community, formal equality and special provisions for historically disadvantaged groups, the drive towards industrialisation and the rights of the peasantry. The Indian Constitution was widely seen as the beginning of a journey towards what its Preamble promises.

The second reason why the Constitution is emerging as the banner of revolt for some struggles, is the nature of Indian democracy, which has rarely remained confined to participation in elections. The explosion of mass movements across the country over the past decades, and especially against the BJP since 2014, is an indication that continuous democratic participation in decision-making has come to be taken for granted by most Indians. There is thus a growing divide between the people and the ruling elites, including all political parties, with the Constitution seen as standing by the people, even as ruling elites deploy the state machinery and the law to subvert it.

In other words, the Indian Constitution is not a document that has managed to establish any kind of single or unitary order. If it was meant to legitimise the brahminical, patriarchal, class society that India is, it certainly failed, for it ended up reflecting the heterogeneity of impulses of the anti-imperialist moment. While I do not suggest that the Constitution exhausts all possibilities for radical politics, it certainly seems to offer some kinds of movements the resources to think in radically transformative terms.

In 2013, the Supreme Court delivered its judgment in the Niyamgiri case, upholding the right of gram sabhas to make decisions about customary forest resources in light of their cultural rights over land. Under international human rights law as well, claims to land and community resources for indigenous peoples are frequently articulated in terms of cultural rights, more than just economic, political and social rights. How does this relate to your thesis in Secularism as Misdirection that ‘the invocation of secularism enables an uncritical acceptance of the violence of capitalism on people and nature as the historically inescapable way into modernity’?

What are called ‘cultural rights’ over land are not at all compatible with ‘secularism’. Cultural rights refer to what secularism can only see as ‘pre-modern’ attachments to sacralised nature and ancient relationships to land. Cultural rights do not come from secular discourse, nor do they presuppose secularism. India’s Supreme Court judgement on Niyamgiri and international law that recognises cultural rights are driven not by ‘secularism’ but by the pressure of contemporary movements that invoke collectivities and non-modern ways of engaging with the earth and nature. It is notable that the Indian Constitution protects community rights along with individual rights in the Fundamental Rights chapter itself. Thus, the constitution is a porous document that does not resolve the tension between several contradictory impulses in the anti-imperialist movement—one of these contradictions being between the drive towards industrialisation and the ancient claims of the peasantry and tribal people to their lands.

On a related note, what do you think feminist politics have to offer to struggles for ecological justice?

There is a long history of feminist critiques of the invisibility of ecology as a concern for Marxism, and a recognition of the parallels between nature and women in the masculinism that characterises modernity. Ecofeminism makes linkages between, on the one hand, women’s labour as reproducing both bodies and labour power, and the ecological understanding that humans are part of nature, not outside it. Ariel Salleh is one of the earliest socialist ecofeminists, who noted the masculinist mode of instrumental rationality that drives capitalist transformation, a mode that matches secular modernity perfectly. Vandana Shiva has argued that two opposing worldviews clash when it comes to forests. On the one hand is the life-destroying and masculinist perspective of the commercial forestry system, which treats forests as a resource to be exploited and sets up private property in forest wealth. On the other hand, she sees the feminine and life-conserving principle embodied in viewing the forest as divine, and as a diverse and self-reproducing system shared as commons by a diversity of social groups. Shiva came under criticism in the 1990s, when Hindutva was on the rise, for apparently asserting Brahminical values vis-à-vis Dalits, and for Hinduising Adivasi worldviews. However, in the twenty-first century, in the face of non-Hindu spiritual assertion by Adivasis facing the destruction of their jal, jangal and jameen (water, forests, land), as well as Dalit environmentalism, Shiva’s views appear to have found their place in ecological thinking.

The socialist-feminist Gabriele Dietrich, a practising Christian in the heterodox liberation theology tradition, has spoken of being part of a universe of many spiritual traditions, practices and symbols through the poor among whom she works. There are Hindus, as well as many Dalits who want to differentiate themselves from Hinduism, and Muslims who do not reject Islam but want to dismantle their cultural oppression. Dietrich sees religious/spiritual beliefs as central to ecologically sustainable lives. She sees as simplified and reductionist the views of many Indian feminists whose secularism involves rejecting religion, not just for themselves but for the movement as a whole. She speaks of cultural and religious practices that link women and nature. She is explicitly critical of the oppressiveness of organised religion and of communalism but is insistent that religions and spirituality have given inner spaces to women and ecological spaces to larger communities.

Dietrich is critical of what was termed ‘actually existing socialism’ in eastern Europe for falling into a growth-oriented paradigm of industrialism, treating nature merely as a resource to be exploited. She points out that in the 1970s there were debates in the Left about whether the ecological question could be solved within capitalism, suggesting a lacuna in theorising that delinked capitalism and industrialisation. It was the alliance of peace and environmental movements, and the women’s movement that addressed this conceptual shortcoming. Her own socialist feminism is part of a strand in India, like that of Chhaya Datar and Maria Mies, which is influenced by a reading of Rosa Luxemburg—seeing capitalism as producing several internal colonies, of which women are the ‘last colony’. She draws on Mies to argue that a socialist-feminist vision must bring women, ‘the last colony’, into alliances with other ‘internal colonies’ like Dalits, Adivasis, unorganized sector workers, and minorities.

More recently, Silvia Federici has drawn our attention to rural and indigenous women’s struggles in Latin America as an embodied form of materialist ecofeminism, based on the body as the first line of defence. In her understanding, notions of the commons and the collective are central to this kind of politics.

Finally, what does a political commitment to decolonialism entail, especially in the field of criminal law and police power?

The core of any decolonising project has to be the recognition and legitimating of heterogeneity, across both time and space. That is, there is no space that is purely indigenous or purely non-indigenous, and no practice that is not firmly located in the contemporary moment, which is a palimpsest of everything that has gone before—no surviving practice is purely ‘ancient’ or ‘modern’. Cultures have crisscrossed across time and space and therefore all culture, as Hoskote and Trojanow put it, is confluence. So the current Hindutva claim to the idea of decolonising is in fact better understood as recolonising. It is a homogenising of the variegated practices of this land across time, under the disciplining force of Brahminism, which is claimed to be ‘Hinduism,’ and is also claimed to be something that has survived in the same form over thousands of years. Both these claims are unsubstantiated.

The new criminal law codes have been claimed as decolonial because the title is in Sanskritised Hindi, not English. This is the sole extent of its ‘decolonising’. The rest of it is exactly the same colonial era provisions of the previous criminal codes but under numerically different sections. And while dropping the colonial provision of sedition, the Bharatiya Nyaya Sanhita has introduced Section 152, which criminalises ‘acts endangering sovereignty, unity and integrity of India’ punishable by imprisonment for seven years up to life. Thus, legal scholars have pointed out that the spirit of the provision of sedition has been retained and potentially covers a wider range of vaguely defined acts.

This kind of broad power to the state is derived from colonial, not democratic practice. Within such a framing then, it is not surprising that the legal attitude to sexual violence is about increasing the coercive powers of the state and surveillance, not freedom for women. Death penalty for rape of minors below 12, introduced in 2018, is retained. Alongside such patriarchal attitudes linking rape and honour, we see over the last decade when this regime has been in power, a general impunity for rising rape and sexual violence against women (as part of the climate of violence against minorities and Dalits). These attitudes are not restricted to any one political organisation or party, unfortunately, as we see with the West Bengal TMC government’s reactions to the RG Kar Hospital rape and murder.

So as far as ‘decolonisation’ is concerned, we would recognise it in action only where we see measures to increase women’s freedom, not restrict it to ‘protect’ them; measures to make public spaces safer and establishing rules and regulations that ensure certainty of punishment after a time-bound investigation; not harsh punishments on paper and lethargic and faulty investigations that end up freeing culprits.

Regarding sexual violence at the workplace, the committees set up under the Vishakha Guidelines, which differed (within the broad guidelines) from workplace to workplace, had greater potential to deliver justice and in fact, often did, than the new law of 2013 that set up ICCs completely controlled by the employer. Legal pluralism and rules attuned to specific contexts would be a truly decolonising move.

May I suggest certainty of ‘prosecution’ and not of ‘punishment’? I would proffer that we must hold the presumption of innocence sacrosanct. It is a fair trial right and an important civil liberties concern. To say ‘certainty of punishment’ is to pre-judge all those accused of sexual violence within the criminal process. Of course, there is a long history of contention on this point between the women’s and civil liberties movements, particularly around the 1983 amendments.

Yes, I think you’re right on this point, but that is the kind of razor’s edge I guess feminist legal interventions tread. It seems we are forced to choose between justice for the survivor/victim/complainant and justice for the accused, both of which are equally on our ethical horizon. But of course, we work towards a world in which both are possible!

About the Authors

Nivedita Menon is a Professor at the Centre for Comparative Politics and Political Theory, Jawaharlal Nehru University, Delhi.

Radhika Chitkara is Assistant Professor of Law at NLSIU.