The Role of State Constitutions in Protecting ... - International IDEA

FEDERALISM, DIVERSITY
AND MINORITY RIGHTS:
WHAT CAN WE LEARN FROM INDIA?
Yogendra Yadav
Introduction
Two general remarks on what lessons can the experience of Indian federalism yield
for the lawmakers in a neighboring country like Burma for the purposes of
ensuring diversity and protection of minority rights.
…it is desirable and
essential to look around at
available models and
practices so that one
can orient one’s search
more clearly.
...most successful
democracies made
institutional innovations. If
there is one lesson of
comparative politics to carry
it is the uniqueness of each
place and the need to tailor
the constitutional-legal
frame to fit the specificities
of each place.
First a point about comparisons and what they can yield. There was a time in the
discipline of Political Science and Law that people under-emphasized how much
could be learnt from comparative constitutions. The pendulum has swung to the
other extreme by now and I think there is a real danger of over-doing the
comparative constitutions, especially since the business of designing democracies
has turned global of late. With a check list model of democracy dominating the
democratic imagination, there is an all round search for “best practices”. I am not
sure it is a very happy development for democratic imagination. While democracy
is expanding all over the world (and I really hope it comes sooner than later in
Burma), our notion of what it means to be a democracy it actually shrinking. I
fear that sometimes comparisons contribute to this tendency. There is of course
very little to be said in favor of re-inventing the wheel. To that extent it is desirable
and essential to look around at available models and practices so that one can
orient one’s search more clearly. At the same time, it is essential to remember that
most successful democracies made institutional innovations. If there is one lesson
of comparative politics to carry it is the uniqueness of each place and the need to
tailor the constitutional-legal frame to fit the specificities of each place.
It is necessary to be reminded of some basics about any constitution.
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There is no pure or true or genuine form of any institution like federalism
or democracy. The worth of the any constitutional design must be judged
solely by how it addresses the specific requirements of the people it is
meant to serve, and not by how well it follows an original design.
A constitution is embedded into a social structure with its cultural
pattern. The same institutional design can yield one set of results in a
society and quite different in another, one set of results in one period and
quite different in another. Unfortunately the current drive for global
recipes for democratization often forgets this basic lesson of history.
Institutions work depending on how they are made to work by the
political force. Politics is all about bending and stretching the rules of the
game. Every legal-constitutional provision has political consequences. The
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