Faculty Seminar | Grand Narratives of Transition and the Quest for Democratic Constitutionalism in India and South Africa

The faculty seminar on “Grand Narratives of Transition and the Quest for Democratic Constitutionalism in India and South Africa” will be held on November 9, 2022. The speaker for this session is Dr. Theunis Roux, Professor and Head, School of Global and Public Law, University of New South Wales (Faculty of Law), Sydney.

About the Speaker

Before relocating to Australia in January 2009, Prof. (Dr.) Theunis Roux was (for four years) the founding director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), an independent research centre based on Constitution Hill, Johannesburg. His main research interest is in comparative constitutional law, focusing on the politics of judicial review in new democracies. He is a former Secretary-General of the International Association of Constitutional Law, and co-editor of the major loose-leaf commentary on South African constitutional law, Stuart Woolman et al Constitutional Law of South Africa. In addition to his academic work, he has acted as a consultant to the South African government in the areas of land restitution, land tenure reform, and regulation impact analysis.

Abstract

There are two grand narratives of the Indian and South African constitutional transitions. The first – older, and at one time virtually unchallenged – holds that these transitions were authentic moments of constitutional re-imagining. Not only did indigenous political actors craft genuinely autochthonous constitutions that were adapted to the challenges these countries faced. The constitutions they crafted extended the tradition of liberal constitutionalism in novel ways. In so doing, the Indian and South African constitutional transitions contributed to the global store of knowledge about the role of written constitutions in promoting human flourishing. The second narrative – newer but gathering strength – treats these transitions instead as great confidence tricks. Exploiting a temporary shift in the balance of geopolitical power, this narrative contends, the Indian and South African Constitutions offered majoritarian democracy with one hand and took it away with the other. Rather than autochthonous creations, both these constitutions are steeped in alien Western values. As such, they inhibit majoritarian democracy in all the ways that liberal constitutions always do, only in this instance, the additional problem is that they were imposed on unsuspecting indigenous publics. The Indian and South African Constitutions work in this way a form of epistemic silencing that is responsible for many of the ills that currently afflict these countries. After elaborating the two narratives in each setting, the paper proceeds to assess them. Rather than arguing directly in favour of one or the other, it examines their tendency to promote or detract from democratic constitutionalism. From this perspective, the problem with the second grand narrative – the decolonial story – is that it is incomplete. For us to have confidence in its prescriptions, its adherents need to explain how an inclusive, democratic constitutionalist process for moving towards a decolonial constitution can be constructed. What safeguards would be put in place to ensure that such a process is not dominated by political forces with an exclusionary conception of national identity? The first grand narrative points in the direction of incremental adjustment rather than complete constitutional overhaul. But it, too, needs to be clearer about how two supposedly progressive constitutions that are failing to live up to their expectations might be reformed to better realise their goals.