Kushagr Bakshi on Constitutional Interpretation and the Transformation of Federalism
Nov 14, 2024
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Kushagr Bakshi, a Michigan International Law Scholar and SJD candidate, dives into the nuances of constitutional interpretation and federalism in India. He discusses the implications of Jammu and Kashmir's unique constitutional status and the effects of Article 370's abrogation. The conversation explores asymmetric versus heterarchical federalism and the importance of historical context in legal interpretations. Bakshi advocates for a more inclusive approach to constitutional analysis, emphasizing participatory democracy and the complexities of local governance.
Kushagr Bakshi argues that the interpretation of Article 370 should embrace constitutional pluralism, recognizing Jammu and Kashmir's unique autonomy within India's federal framework.
The podcast critiques the abrogation of Article 370 in 2019, emphasizing its detrimental impact on Jammu and Kashmir's democratic autonomy and regional identity.
A focus on enhancing local governance is seen as vital for true democratic representation in India, requiring reforms to empower these structures effectively.
Deep dives
The thesis of constitutional pluralism
The dissertation posits that the constitutional relationship between Jammu and Kashmir and India should be viewed through a lens of constitutional pluralism, emphasizing that both entities maintained autonomous traditions. This approach criticizes the interpretation of Article 370 as merely asymmetrical federalism, suggesting instead that it envisioned a heterarchical relationship based on shared values and regional distinctions. The argument is supported by the suggestion that the Constituent Assembly of Jammu and Kashmir should have been granted more significance in interpreting the provisions of Article 370. This perspective challenges the dominance of the Indian Constituent Assembly’s framework by calling for recognition of the unique historical and constitutional context of Jammu and Kashmir.
Critique of Article 370's abrogation
The dissertation critiques the abrogation of Article 370 in 2019, arguing that it undermined the intended pluralistic nature of the constitutional relationship between Jammu and Kashmir and India. The author discusses how the Supreme Court's judgments regarding this abrogation were misguided, failing to appreciate the original constitutional nuances and the importance of regional identities. In examining the consequences of this abrogation, the author highlights the loss of Democratic autonomy for Jammu and Kashmir, raising essential questions about the legitimacy of such a significant constitutional change. The author plans to expand on this critique in later chapters, showcasing how these decisions fail to honor the foundational constitutional values.
Exploring central versus state power
The podcast raises questions about the dynamics of central and state power within India's federal structure, particularly in light of recent political developments. It questions the legitimacy of the central government's expansion of power over states, suggesting that a more equitable distribution of authority is necessary for genuine federalism. The concept of heterarchy is debated, with a focus on how various states, including Jammu and Kashmir, can maintain their unique identities while remaining part of the Union. The potential for friction between the central government and states is highlighted, suggesting the need for a more nuanced understanding of Indian federalism that respects regional variations and autonomy.
Role of local governance and democracy
The importance of local governance in India’s federal system is emphasized, particularly regarding how it influences the representation of local interests and democratic participation. The discussion explores how local governments can provide a platform for voice rights and expertise, ensuring that citizens have a say in their own governance. However, the podcast acknowledges challenges in the current system, where local governments often lack the capacity and autonomy required for genuine representation. This gap raises critical questions about the future of democracy in India, calling for reforms that empower local governance structures.
Comparative federalism insights
The podcast highlights the potential benefits of drawing from comparative federalism examples, such as the European Union and other global models. These insights can help inform discussions about the future of Indian federalism, particularly regarding state autonomy and the need for cooperative governance. The idea that federal relations should respect regional identities and local governance is presented as a guiding principle, which could reshape Indian federalism into a more democratic and pluralistic model. Ultimately, the conversation suggests that rethinking constitutional frameworks in light of historical and contemporary comparisons is crucial for addressing the complexities of India's diverse regions.
I spoke with Kushagr Bakshi is a Michigan International and Comparative Law Scholar and an SJD candidate at the University of Michigan Law School, where he also received his LLM. He received his first law degree from NUJS in West Bengal. We discussed a chapter of his dissertation called “The Country Without a Post Office: Jammu and Kashmir and the Imaginations of Freedom Within a Federation. We talked about assymetrical federalism versus hetererarchy, constitutional values and imagination for federalism in India, and much more.
