Constitutional scholarship is not necessarily undigested matter, coloured and rendered pungent by the bile of the asshole who expels it. It may be utile and alethic- albeit in a modest, self effacing, manner. However, at the best of times, there are diminishing or negative returns to it.
Incontinent Constitutionalism is either a paranoid or bigoted type of logorrhea based on a crazy view of law and politics or else refers to a collective akrasia featuring an impetuous (propeteia) or passional claim which is too weakly (astheneia) resisted by that faculty whose task it is to decide in a judicious manner.
'Moral panics' may cause this. But so may genuine threats. I scream and shit myself, when raiding the fridge at midnight, if I see a squat and sinister figure approach me with a knife glistening in its hand.
This is perfectly natural. Mum is wrong to say that I should consult a Doctor about my fouling my pyjamas every time she approaches me with the intention of cutting off the crusts of the bread I intend to use to make myself a sandwich.
I am not saying it is irrational for me to shit myself- Mummy should keep a sufficient quantity of crustless sarnies by my bed so as to obviate the need for my mid-night fridge raiding- but, sensu stricto, if I urge this claim in a court of law, I would be guilty of Constitutional Incontinence even though the basic structure of Boddhisattvaji, Dr. Ambedkar's, Constitution, mandates nothing less than my 'dirty protest' (which was carried out in the UK & thus is covered by McFeeley and Others v. the United Kingdom (1980) ) against Mummyji's (surely caste-based?) atrocity against me
I should explain, I have never undergone upanayanam & thus am acahrabrashta and arguably Dalit. What is certain is that I am empirically untouchable because I keep shitting myself. In either case, Mummyji, as an Indian citizen, is culpable under SC/ST Atrocities Act. I may mention, Modi's Majoritarian (i.e. Fascist) Regime defied the Bench's Kashinath Mahajan decision by rushing through a legislative amendment. It is shocking that a supine, horribly Hindutva, High Caste Bench, validated Modi's 18A amendment in 'Prithviraj Chauhan'.
Be that as it may, the fact remains that the Constitution may be undermined by incontinent reactions to what are perceived to be exigent circumstances or 'apadh dharma' as the Hindoooooos have it.
A different type of incontinence arises from pure 'virtue signalling' or 'wokeness'. But, it is more likely to create a popular backlash and thus the Bench, and that portion of the Bar which isn't subsidised by an alien 'eco-system', are likely to keep their distance from it.
Scholars (i.e. shitheads educated way above their intelligence) become guilty of Constitutional Incontinence when
1) they pretend that both statute & Case law saw the opposite of what is clearly the case. This may take in those with no knowledge of the law. But it is charlatanry of a mischievous type. In this book, I examine Dr. Gautam Bhatia's writings, and find many examples of this. Indeed, I am not aware of a single instance where Bhatia is correct about the ratio of a Case he mentions.
2) they pretend that the Judge, qua Judge, has no Hohfeldian immunity attaching to their conduct in Court. Bhatia says that a Judge can be sued for libel for remarks he makes from the Bench! He argues that Judges can be cross-examined as witnesses even if there is no accused and therefore no Trial Court!
3) they pretend that there was some Constitutional Golden Age from which the present situation represents some extraordinary and very sinister departure. If you keep crying wolf & no wolf appears, you don't just harm your own reputation. You disable Society's defence against actual wolves.
Incontinence, it must be said, is its own punishment. When I shit my pyjamas, Mummyji's conscience is not greatly pricked. Like Soniaji, with respect to Rahul, she knows she has all she could possibly do for her cretin of a son.
Since Mummys matter, I am obliged to observe that Socioproctological Investigation can say little about them.
Do Constitutions greatly matter? No. Power arises from Expectations regarding economic resources, military strength, and public sentiment.
Constitutions only matter to the extent that they affect Expectations. But, there is always a more direct way to do so with reference to any significant parameter.
Written or unwritten constitutions have proved wholly ineffective in preserving any particular distribution of power. In the jargon of Economics, a Consitution is a 'Social Contract' but of an incomplete type- in other words, as circumstances change, control and beneficial rights are reassigned. This is a feature, not a bug. Why? Knightian Uncertainty. Future states of the world are unknown and this militates for 'Regret Minimization' rather than 'Expected Utility Maximisation'. It would be foolish to ascribe some magical power to the Constitution or to take it as a Sacred Scripture. All law is defeasible and the Constitution especially so.
The Law is a service industry. Remedies are linked to Rights' violations by a vinculum juris or bond of law but, if the remedies are not incentive compatible they may be rationed or have a perverse effect. A Constitution, to survive, must permit Economic growth and the military and political survival of the State. As David Hume pointed out long ago, Justice must pursue Utility. If it creates distutility it will be either disintermediated or destroyed.
For lawyers, the Constitution- or claims about it- may underlie or reinforce particular arguments but grand rhetorical flights in this context are mere puffery. Judges too must give up the notion that they can do 'complete justice' or that, in Amartya's Sen's terminology, the Nyaya (judgments) of the Bench can replace the Niti (policies) of the Netas (politicians).
In India, in the 1990's, the Supreme Court unitlaterally made itself self-selecting in direct violation of the written Constitution. This was a period of weak coalition governments and it was convenient for the Legislature to avoid deciding 'wedge issues' by kicking the can down the road into the courts. After 2014, with a strong Prime Minister who had a majority in Parliament (till 2024) the balance of power shifted. The Court kept its privileges but, it was noticeable, it was delivering more than what the Executive could achieve on its own- e.g. ruling that Jammu & Kashmir had no shred of sovereignty or ordering the building of the Ram Temple. This was a period when economic centralisation also increased. Those who swore their religion was the Constitution and who hoped the Bench would frustrate the ruling party at every turn, became increasingy bitter- not to say unhinged.
One such was Gautam Bhatia who in a recent book asserts that the Indian Constitution remains a “terrain of contestation between different visions of power”. Such is not the case. The Supreme Court says it alone has the right to interpret the Constitution. Sadly, its interpretation can change from day to day as bigger and bigger constitutional benches overrule previous decisions. The Bench can, in theory, use contempt proceedings to enforce its orders but, for some years now, senior advocates have been scandalising the court with impunity. Meanwhile, attempts to streamline the justice system- e.g. by setting up commercial courts or by appointing Court Managers- have largely failed. Malaysia has managed to preserve the independence of the judiciary while greaty increasing efficiency. More recently, Pakistan, curbing the power of the Bench, has pushed through drastic reforms greatly reducing case back-log. India, despite orders from the Supreme Court, seems unable to emulate the Malaysian example.
Currently, we have a well functioning Executive and Central Legislature. Attempts have been made by lawyers to undermine the independence of the judiciary (as stated by the Bench in the Justice Loya case) and now, by Rahul Gandhi, to undermine the independence of the Election Commission. However, the Executive remains immune. If the BJP win the UP election in March 2027, the 2030s will belong to Yogi Adityanath. The Bench may achieve more by doing much less. What of Centralisation (which, from the fiscal point of view, has increased in India & UK)? Will States get more revenue raising powers? Probably. A 'one size fits all' Centralised approach has run into problems. We may be moving to 'Tiebout models' so that different States can specialise in different things with an appropriate fiscal mix of their own.
India follows the Westminster model. Parliament is supreme but may not assert its supremacy if it is divided or has weak leadership (i.e. the Executive, which commands the confidence of the legislature, is of poor quality or lacks popular support). Since the country is unitary and there is no 'dual sovereignty', the role of the Judiciary is limited.
Dr. Bhatia thinks there are six axes around which power is distributed under the Indian constitution. He does not understand that countervailing power is not itself power. Indeed, for any distribution of power (i.e. the ability to achieve an outcome) there may be a distribution of countervailing power such that everything cancels out. Nothing can be achieved. There is deadlock or stasis.
Some Indian judicial decisions appear bad law- e.g. the notion that a diplomat can waive his own immunity rather than that only his State can do so- but, it must be said, Judges appear quite sane when compared to the hysterical, wholly illogical, ravings of some 'senior advocates' and soi disant constitutional scholars.
Former Chief Justice of India, D.Y Chandrachud, is a brilliant scholar and was a prolific writer of judgments of great significance. It may seem unfair to compare him to Batty Bhatia who, I believe, writes Science Fiction. Nevertheless, Socioproctology is no respecter of persons for the same reason that Jurists say- Lex non distinguit inter altos et humiles. A fault found in a fool may also be found in a sage. The difference is we can repair the faults of the sage. Indeed, he may do so himself. Chandrachud's life, as a pure constitutional scholar, is- so to speak- just beginning. Future generations may view him as a Hohfeld or Hart. Equally, his fundamental silliness may grow more egregious yet thus fitting him as an increasingly fertile field for Socioproctological Investigation.
One final point. In India, uniquely, a Dynasty took root. Assassination tempers autocracy. Might it do the same to asininity? We hope not. Still, the true test of the Constitution will come on the day Indira Gandhi's grandson assumer powers equal to hers. Incontinent Constitutionalism must be curbed or else a bloody saga will be repeated to the great hilarity of India's enemies.
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