Directive Principles and the Expressive Accommodation of Ideological Dissenters

16(2) International Journal of Constitutional Law (2018) 389

26 Pages Posted: 23 Dec 2016 Last revised: 13 Aug 2018

Tarunabh Khaitan

University of Oxford - Faculty of Law; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group; The University of Melbourne - Law School

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: 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. Available at SSRN: https://ssrn.com/abstract=2888987 or http://dx.doi.org/10.2139/ssrn.2888987

Tarunabh Khaitan (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

The University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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