The Roux Balm

Arghya Sengupta

Research Director, Vidhi Centre for Legal Policy

If Lindewe Sisulu, Transport Minister of South Africa, thought that the Constitution of South Africa was like a “Panadol” providing momentary relief, Theunis Roux’s article bringing that Constitution into conversation with the much older Indian Constitution is like a balm. It burns at first blush, but when it settles, it has a soothing feeling.

In India, debates about the nature of the Constitution and its ability to truly serve “we the people” in whose name it is written, are unusually fractious. In this context Roux’s intervention that brings two seemingly opposing viewpoints into conversation with each other prods each of us who are participants in this debate to be the best version of ourselves.

Roux argues that the liberal-progressivist narrative (LPN) and the culturalist grand narrative (CGN) of the Constitution, despite their differences, share a common goal. The LPN views the Indian and South African Constitutions as masterful adaptations of a liberal constitutional model to a Global South context. In contrast, the CGN critiques the Constitution as a continuation of the colonial matrix of power that disregards indigenous constitutional ideals. However, Roux contends that both perspectives ultimately strive toward what he calls Southern Democratic Constitutionalism—a new post-colonial state model aimed at transforming society and materially improving people's lives.

As a caveat, it is worth examining whether the unifying rationale that Roux has identified for the two projects does much normative work. In this context, there is a distinction that needs to be drawn between means and ends. The ends sought to be achieved by the proponents of these two viewpoints may well be to articulate a form of constitutionalism that is best suited to their respective countries. At the level of intention, Roux is surely right. However, the key point is this—even if the intention is such, the means adopted are so widely different that the common intended end pales into insignificance. Roger Federer and Rafael Nadal both want to win tennis matches—but are poles apart in terms of style. Merely because they have the same intended end does not whittle down their differences in how to get there. It does, as Roux points out, call for healthy respect and engagement.

To reach his conclusion, Roux adopts the best possible interpretation of each of these two streams of thought and urges them to be better. Since I am more familiar with the Indian literature on the subject, I will use examples from the Indian works he has cited to make this point. A modern expression of the LPN view can be found in Madhav Khosla’s work. Khosla’s main point is that the Constitution was a founding moment for the modern liberal Indian state because of its emphasis on universal suffrage, fundamental rights and codification of law. Roux understands this as taking certain ideas central to constitutionalism in the Western world and adapting it successfully to a non-Western context.

However, even though the Constitution of India makes a reference to universal suffrage, it does not recognise the right to vote as a fundamental right. The fundamental rights in the Indian Constitution themselves are an incorporation worth celebrating, but came riddled with wide exceptions. Codification itself was a colonial process that began with the creation of  consolidated bodies of Hindu and Islamic law. Besides, Khosla’s account does not seriously look at how colonial institutions—the police, the judiciary, the Indian Civil Service (a centralised bureaucracy) —were perpetuated and did not undergo any fundamental transformation following the adoption of the Constitution. Ambedkar admitted as much, when he clarified that “the provisions [in the Indian Constitution] taken from the Government of India Act, 1935, relate mostly to the details of administration.” His implication was clear—merely because the institutions were colonial would not matter, as they would now be run by Indians, they would also be run for Indians. Roux is right to point to the fact that if adherents of the LPN are serious about their goals, they need to be serious about reforming the institutions that will get us there. Maybe the Indian Constitution is simply not as liberal as some would like to believe.

Equally, for the CGN, Roux rightly captures the difficulties of having this conversation at a time when the winds of authoritarianism blow globally. Putting this conversation into a longer historical frame is also apt given the recent tendency to consider any criticism of the Constitution as motivated by support of the ruling Bharatiya Janata Party (BJP). Roux perceptively grasps this dilemma that a critic of the Constitution like me faces when he writes that the nature of the times we live in is a reason why those with critical views of the Constitution pull back from advocating for a complete overhaul.

However, upon interrogating this dilemma more deeply, we will find it is not because, as Roux apprehends, any Constitution that comes out of a time such as this will be authoritarian. Rather such a Constitution, no matter what its contents, will not enjoy the wide, cross-party support that is needed for constitutional ideas to germinate and take root. Such an exercise, at least in the Indian context, would be a waste of time.

In India today, much of this is academic. This is because the elephant in the room when it comes to discussing the Indian Constitution is BR Ambedkar, widely recognised as its moving force. Roux appreciates this but perhaps does not dwell on it as much as he might. He recognises the paradox that the BJP, whose ideological opposition to all things colonial is well-known, has remained ambivalent on the Constitution.

At the risk of over-simplification, a key reason behind this paradox is that, over the decades, Ambedkar has not only been seen as the greatest Dalit leader in India, but also attained a deity-like status, whose shrine in Chaityabhoomi in Mumbai sees scores of devotees come to pay their respects much like in any other temple. Dalits form 16.6% of the population and are an important voting bloc for any political force that wants to win general elections in India. The BJP has shown its keenness to cast its ideological viewpoint on the colonial nature of the Constitution aside and remain pragmatic in this regard.

Sometimes the mask slips, as it did recently in Parliament when Amit Shah, the Home Minister, rather derisively said that if people recited God’s name as many times as they did Ambedkar’s they would attain salvation. But he was quick to retract it saying that he wholly respects Babasaheb and can “never insult him”. Simply put, had it not been for Ambedkar’s position as Chairman of the Drafting Committee of the Constitution (a job that Mahatma Gandhi had put him to), and his role in ensuring widespread consensus regarding its provisions (and, in hindsight, its longevity), the narrative around the Constitution today may have been markedly different. Proponents of the CGN must recognise this and be careful about what they wish for.

But this fact should not deter those of us who are interested in the constitutional futures of South Africa and India from laying out what the contours of a decolonial Constitution looks like. Many critics of my book The Colonial Constitution have claimed that I do not put forward an alternative idea of what the Constitution should contain. This is neither an easy task, nor one that can be done quickly. Yet Roux is right in saying that an important task for interested scholars of constitutional law lies in outlining such a vision. I remain in the hope, as he does, that this will further narrow existing differences between constitutional law scholars. I am grateful to him for making a start.

Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy. Views are personal.

This post is part of a symposium, guest edited by Anmol Jain, responding to Theunis Roux’s article ‘Grand Narratives of Transition and the Quest for Democratic Constitutionalism in India and South Africa’.

Suggested citation: Arghya Sengupta, ‘The Roux Balm’ IACL-AIDC Blog (4 March 2025) https://blog-iacl-aidc.org/2025-posts/2025/3/4/the-roux-balm.