Directive Principles and the Expressive Accommodation of Ideological Dissenters

27 Pages Posted: 23 Dec 2016 Last revised: 2 Nov 2018

See all articles by Tarunabh Khaitan

Tarunabh Khaitan

University of Melbourne - Law School; University of Oxford - Faculty of Law; NYU Law School; Berkeley Center on Comparative Equality Law

Date Written: December 22, 2016

Abstract

This article argues, using India as a case study, that constitutional directives can be a useful tool for the expressive accommodation of ideological dissenters who would otherwise lose out in constitutional negotiations in deeply divided societies. Under certain conditions, these directives can be useful in getting populist illiberal groups to sign up to a (broadly) liberal constitution. Framers of the Indian constitution successfully accommodated some such groups using constitutional directives, and tempered this accommodation through strategies of containment and constitutional incrementalism. Such calibrated accommodation can give dissenting groups enough (and genuine) hope of future political victories, without going so far that their opponents in turn leave the constitutional negotiation table. By focusing on the accommodational needs of ideological dissenters, this article adds to existing literature on constitutional consensus-building techniques, which has largely focused on political insurance for ethnocultural minorities. It also highlights a key function of constitutional directives, which have hitherto been considered at best to be interpretive aids in constitutional adjudication, and at worst as constitutional dead weight.

Keywords: comparative constitutional law, constitutional theory, deeply divided societies, constitution-making, directive principles, constitutional incrementalism, expressive accommodation, ideological dissenters, constitutional theory, constitutional law, consensus-building

Suggested Citation

Khaitan, Tarunabh, Directive Principles and the Expressive Accommodation of Ideological Dissenters (December 22, 2016). 16(2) International Journal of Constitutional Law (2018) 389; U of Melbourne Legal Studies Research Paper No. 790; Oxford Legal Studies Research Paper Forthcoming. Available at SSRN: https://ssrn.com/abstract=2888987 or http://dx.doi.org/10.2139/ssrn.2888987

Tarunabh Khaitan (Contact Author)

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