Some Reflections On What The State Is Doing With Our Time
The Constituent Assembly of India, on Dec.10, 1946. (Photograph: NMML/Government of India) 

Some Reflections On What The State Is Doing With Our Time

BloombergQuintOpinion

This article was first published on the Law and Other Things blog.

The Constituent Assembly’s framing of the Indian Constitution was likened to Nero fiddling as Rome burned. Two years, eleven months and seventeen days to draw up the document, was much too long in the eyes of some. But, if the framing of the Constitution was done by the clock, governance under the Constitution came with relative freedom on how to use the time of the republic. Politics and policy would take time, and the state could divide it up and use it as it saw fit – into five-year plans, parliamentary and legislative sessions and the like. The only timelines that bound the state are those that the people chose for it and laid down in the Constitution, such as the length of an elected government’s term or the permissible duration of President’s rule in a state. It appears then, that whether nation-building happens by the clock or with freedom over how to fill time is the difference between dominion status and sovereignty of the state.

Even in the context of the people, sovereignty over one’s time can hardly be uncritically assumed. Although hustle-culture memes insist that “everyone has the same 24 hours a day”, the real lives of people tell a different tale.

Men and women from dominant castes have more time for self-care and leisure, and Dalit and Adivasi women, the least. At present, work-from-home has meant lesser time on the hands of women in heteronormative households, owing to the gendered burdens of domestic and care labour. Between lockdowns, unlocks, and curfews, each passing month of the pandemic has brought us a new set of rights and freedoms depending on our contexts.

Because time continues to hold allure as a resource available to all in equal measure, how time is divided and assigned, for what, and by whom, can reveal useful insights about power and freedom in the everyday. I want to use this approach to explore what the Indian republic does with its sovereignty over time. In this piece, I engage in a preliminary exploration of this question, drawing on the work of Elizabeth Cohen, in The Political Value of Time (2018). In two parts, I attempt to show that innocuous calendrical changes can reveal deeper insights about state power, and point to how the state can command our time to reap political gains while inflicting constitutional losses.

1. Time In Laws

The Constitution is replete with references to time as a measure.

For instance, for securing citizenship as of the commencement of the republic under Articles 5-8 of the Constitution, moments in time acted as a cut-off beyond which access to the right itself ceased. In other cases, such as voting rights and the right to contest elections, a set duration of time must pass before the rights can be validly exercised.

At first blush, the ubiquity of time measures in the Constitution appears to just be a necessity – since all actions in the physical world happen against the march of time (Cohen, p. 98). Cohen shows us why there is more to time than that. She points to three ways in which durational time bounds, structures, and distributes the exercise of rights and power – whether of people or of the state – in law (Cohen, p. 30-1, 53-60).

First, “fixed single boundaries” where the right or power is bounded by a single instant in time, as in drawing the territorial and temporal boundaries of a sovereign state.[1]

Second, “countdown boundaries”, where the right or power is dispersed over at least two instants of time. Quarantine periods, curfews, limitation periods, and the period of validity of a temporary statute[2] are countdown boundaries.

Third, “recurring boundaries”, where the right or power is dispersed over many instants of time. For instance, governments are required to be periodically voted in to power, as a way of keeping state power accountable to the electorate.

Temporal Boundaries On State Power

In the context of the state’s power, Cohen shows that recurring boundaries are most compatible with democratic power in the republican form of government. For instance, fixed terms for governments act as an opportunity to elicit the democratic mandate, and thus, to establish accountability to one’s constituents at the end of each term.[3] In Cohen’s words (Cohen, p. 59):

“…In the same way that decision making is considered democratized when it is dispersed over a larger rather than smaller portion of the population, so too might we think of boundaries and rights as more democratically structured when they are built using multiple points in time rather than single dates.”

On the other hand, a single instant boundary affords no opportunity to “…accommodate change that transpires over time” after that instant (Cohen, ch. 2). For instance, protracted curfews on movement and communication (as in Kashmir), protracted preventive detentions (as with Kashmiri leaders), and protracted pretrial custodies (such as with lawyer Sudha Bhardwaj) – all began at a single and arbitrary instant of time, and have failed to account for changes that transpired after, over time. Exercises of power at a single temporal moment lead to democratic attrition.” They are thus least compatible with democracy and republicanism. For instance, fixing the date of eligibility to citizenship in Assam to a single instant in March 1971 has shown that “… the farther out we get from the registry date the fewer people are eligible to register and the larger the population of disenfranchised people grows.”[4] (Cohen, p. 55)

The Indian Constitution tends towards dispersing power across multiple instants of time, as in election schedules, except for President’s rule, where power is dispersed over two instants of time. The transition from elected government to president’s rule represents the executive’s change of gears, from a power enclosed within recurring boundaries to a power enclosed within a countdown boundary.

This transition is evidently a retrogression of democratic rights. Recognizing this, President’s rule is only permitted in the exceptional situation that the central government is of the view that “government of the state cannot be carried on” according to the Constitution. The six-month period of suspension of democratic government is justifiable only towards restoring constitutional government in the state. (See Rameshwar Prasad (VI) v. Union of India, (2006) 2 SCC 1, at para 96) Furthermore, such proclamation is valid only if Parliament approves it after two months, “…both as a check upon the power and as a vindication of the principle of Parliamentary supremacy over the executive.” (See S R Bommai v. Union of India (1994) 3 SCC 1, at para 290)

Therefore, even in the exceptional situation where the Constitution does permit ratcheting down the recurring boundary into a countdown boundary, safeguards are baked into the use of the power.

What’s In A Schedule?

State action in the form of a modification of a schedule can appear innocuous. Consider the “one nation one poll” proposal (ONOP). On the face of it, ONOP appears not to change the five-year boundary on the power of elected representatives. What ONOP actually does, is effect a radical change in the nature of power held by our representatives.

The enforced simultaneity of polls – unlike the organic simultaneity of elections at the start of the Indian republic – means that the lower house must necessarily stay in office for a period of five years, even if the government loses the confidence of the people. To prevent disruption of the five-yearly election schedule necessary for ONOP, the Law Commission recommends that an alternate government be proposed in a “constructive vote of no-confidence” (Para 8.24 – 8.35). That is, members of the house install another government of their own choosing, probably through post-poll alliances, without a renewed electoral mandate.

If this proposal were adopted, ONOP effectively imposes a curfew of sorts on the conduct of elections for five years. By silencing the electorate’s democratic power within the five-year period, ONOP transforms the recurring boundary on democratic power into a countdown boundary. In comparison with the present election calendar, in which democratic power to vote can be exercised whenever the opportunity arises – such as when a trust vote is lost – ONOP reduces the distribution of democratic power to just two instants in time.

In other words, through a seemingly innocuous calendrical change, ONOP effects a qualitative change in the capacity of Indian elections to channel democratic power.

The delimitation freeze is another useful example. The number of territorial constituencies in any state must be proportionate to the population of the state. Territorial constituencies are to be drawn such that each seat in the house represents the same number of individuals. (See Arts 81(2) and 170(2) of the Constitution of India)

In keeping with the “one person one vote” ideal, the number of constituencies and constituency delimitation was to be revisited when the census provides updated population data. (See Third Proviso to Art 82, and Third Proviso to Art 170(3)) That is, the right to be counted as an equal voter wielding equal influence as any other, was to be ensured by revalidating delimitation every ten years – a recurring boundary.

However, the number of constituencies or seats per state to the Lok Sabha was frozen to reflect the population count of a fixed single instant – the 1971 census.[5] A freeze declared at a single instant has caused democratic attrition because the farther we come from 1971 – and the more population each state in India sees – the more the legislatures become unrepresentative. Voters now wield unequal influence in the Lok Sabha as a function of their constituency’s population, thus contrary to the one-person-one-vote standard.[6]

In both these examples, a facially innocuous calendrical change, on deeper examination, alters the temporal boundaries on state power inconsistent with democratic standards. Time then is more than just a simple matter of scheduling constitutional life.

2. The Manipulation Of Time

The Value Of Time

Some processes, such as the production of “character development, deliberation, reflection, and consent…”, can only be completed over a duration of time. What value does the assigned duration of time hold in such processes? Cohen answers that time not only is instrumentally useful for measuring the conduct of processes, but also symbolically indicative of the completion of the processes (Cohen, p. 98).

When a pre-decided duration or schedule is prescribed as necessary for completing a process, time has instrumental value (Cohen, p. 66). For instance, a minimum duration of 4-5 years is necessary for a government to carry out the policy mandate on which it wins the election. Likewise, a minimum number of days per year  is seen as necessary (although not required) for completion of legislative work.

But when the passage of time is taken to imply that deliberation, reflection or consent has been completed, time holds symbolic value. For instance, the completion of 18 years of age is taken as indicative of the character development needed for casting a vote in elections, even for 18 year olds who are politically unaware (Cohen, p. 103). Likewise, the completion of the period of 12 years of uninterrupted possession of land is assumed to transfer the title in the property to the possessor, even though actual title deeds lie in the hands of someone else. In this way, the duration of time assigned for a process acts as a proxy for some underlying intangible idea.

The theoretical underpinning of “time” having instrumental value for deliberation, reflection and consent was developed by the French philosopher Condorcet. While other philosophers treated consent as capable of being accorded in an instant, such as at the vote or the moment of constitution of the sovereign state, Condorcet argued that consent could only be given if it followed a process of deliberation, reflection, and judgment (Cohen, p. 72, 80). Thus, Condorcet favoured pacing out political processes over time. At the same time, he cautioned against excessively long durations and durations without limits as they were likely to lend themselves to partisan decisions (Cohen, p. 73). Taking off from here, Cohen argues that time – being indispensable for attaining key states and outcomes in a democracy – becomes a political good with “political value.” (Cohen, p. 64, 118).

Reaping Time’s Political Value

Time “…is necessary, although not sufficient” for producing maturity, loyalty, reasoning, deliberation and consent (Cohen, p. 64). Yet, one key way the State commands time is by treating its passage as sufficient for realising democratic outcomes. This has played out in several recent Lok Sabhas. Disrupted parliamentary sessions are seen as legitimate merely because the session was completed on schedule. Deliberations and considered judgments are assumed to have been made, as if the presence of parliamentarians in the house for the duration of the session is sufficient. This is now so routine that it barely raises eyebrows.

Demonetisation was more standout and telling. The notification ending the legality of all series of certain currency notes as tender was issued just a week prior to the 2016 Winter session, which commenced on 16 November. (Whether such demonetization by executive fiat and not parliamentary enactment is consistent with the Constitution is a separate question.) The government chose to ride out the session without introducing any bills relating to demonetisation. Two weeks after the close of the session, the government promulgated the Specified Bank Notes (Cessation of Liabilities) Ordinance, 2016. The Ordinance made the continued use of the demonetised currency illegal, but permitted a grace period of three months before the penalty would kick in.[7]

With the grace period of three months, it would seem that immediate action in the form of the ordinance at that time (per Article 123) was not necessary at all. Worse still, the circumstances supposedly necessitating the immediate promulgation of the ordinance were of the government’s own choosing, having omitted to introduce any demonetisation bills during the session. In other words, inaction in the period of time assigned for the exercise of legislative powers cloaked the ordinance with legitimacy, only because it was promulgated when the Parliament was not able to enact laws. By allowing time to pass, the State reaped political gains.

Now, it is not my case that the efflux of allocated time periods can by themselves establish an unconstitutional evasion of the state’s duties. However, the manner in which the State exploits temporal boundaries on its powers – to cloak its manipulation of political calendars with legitimacy – says a lot. When parliamentary sessions are disrupted, it is precisely the fact that Parliament holds presumptive legitimacy between its recurring boundaries that affords parliamentarians the cover of legitimacy even when they disrupt or filibuster. Likewise, when ordinances are promulgated at opportune moments, it is precisely the fact that there are checks on creating enduring rights and liabilities within a countdown boundary[8] that allows government a veneer of legitimacy for acting through an ordinance. Countdown boundaries and recurring boundaries are thus weaponized to cloak the manipulation of political calendars with legitimacy.[9]

In the same vein, excessive promptness in passing laws might also indicate that a political calendar is being manipulated with the aim of exploiting temporal boundaries of state power. For instance, bills are now introduced and considered on the same day in legislatures and Parliament, contrary to house rules that require 48 hours of time between the two (presumably to enable legislators to study them). The lifecycle of a bill being completed within two days of its introduction in the house reeks of impetuous haste.[10]

Condorcet would argue that such haste is not conducive for building the knowledge and experience necessary for validly consenting to the political good. Haste can also indicate caving to “passing fancies”, “herd mentality”, or being unmindful of future generations (Cohen, p. 73-76; Federalist 71). Yet, it is precisely the fact that legislatures are presumptively legitimate within the recurring boundaries of their powers that gives even hastily enacted laws a veneer of legitimacy.

3. In Closing

The examples drawn on in this piece can perhaps be defended as constitutional, strictly speaking. But that is precisely the point. Excessive focus on compliance with the black letter law can elide the significant harms done to constitutional principles – questions that are much harder to litigate in constitutional courts.

If the Constitution was to be “employed daily, if not hourly” by citizens for their personal and public interests, it would seem that the Constitution is being deployed by the minute, by the state, towards political gains. (See Granville Austin, Working a Democratic Constitution, p. 10)

With these reflections on what the State does with its sovereignty over time, I want to suggest that the State’s hold over time is no different from the State’s hold over space – something we interrogate commonly in terms of freedom of movement, protest, property, and access to the commons. What insights might we generate then, if we begin to examine public time just as we might public spaces?

And what insights might we generate if we examine what happens to the time of various (subaltern, if you will) publics? In recent times we have witnessed several instances of the state cheapening the time of some. The Citizenship Amendment Act, 2019 values the time of Muslim refugees from Pakistan, Afghanistan and Bangladesh differently than that of others in the path to citizenship by naturalization. A majority of those subject to years of pre-trial detention are from the Scheduled Castes, Scheduled Tribes and Other Backward Classes, and more than a fifth are Muslims. Anyone acquainted with the Supreme Court of India is familiar with the fact that the listing of cases for hearing, privileges the time of some petitioners over that of others.

In short, what can we learn if we examined state action through the lens of time?

Malavika Prasad is a member of the Senior Editorial Board at the Law and Other Things Blog. She is an advocate and doctoral fellow at the NALSAR University of Law.

The author would like to thank Anindita Mukherjee and Vikram Raghavan for their helpful comments, and Zadie Smith for her heavy-lifting as her muse.

The views expressed here are those of the author, and do not necessarily represent the views of BloombergQuint or its editorial team.

[1] A fixed single instant boundary can also do the work of a territorial boundary when it is not possible to redraw territorial boundaries to achieve the desired ends. For instance, all migrants from Pakistan to India, who descended from parents or grandparents born in British India and the princely states, would be eligible for Indian citizenship differently as of 26 November 1949 depending on whether they entered India before or after 19th July 1948. This was the date on which the permit system came to regulate migration from Pakistan to India in the western border. Articles 6 and 7 of the Constitution of India. Those who entered before the 19th of July 1948 would merely need to be ordinarily resident in Indian territory since the date they entered India, while those who entered after 19th July 1948, would have needed to reside in Indian territory for a period of at least 6 months and then apply for (prior to 26 November 1949) and be registered as a citizen. The single instant in July 1948 – an arbitrary moment if ever there was one to those attempting to come to, flee to, or return to India after partition – thus determined the power of people to claim the right of citizenship.

[2] At the end of the period, the sunset clause kicks in causing the statute to expire. Temporary legislations are designed to ensure limited and accountable government. The consent of the public is assumed to favour the law for the duration of the law’s operation, after which consent will need to be obtained once again. Guido Calabresi, A Common Law for the Age of Statutes 59 (Harvard University Press, 1982).

[3] Alexander Hamilton termed “duration” in office as one of the criteria for the energy of the executive. Federalist 70 and 71.

[4] Analogously, the single moment in time at which a sovereign state is constituted is always moving further away as time passes. If the democratic legitimacy of the state is located solely in the consent obtained at its constitution, the state might as well be a monarchy.

[5] The Constitution (Forty-second Amendment) Act, 1976. Thus, constituency boundaries even if redrawn – as they were based on the 2001 census – cannot lead to an increase in the total number of seats to the Lok Sabha or Vidhan Sabha. (The census of 2001 formed the basis for this delimitation exercise under the Delimitation Act, 2002, as amended in 2003, in line with the Constitution (Eighty-fourth Amendment) Act, 2001, and the Constitution (Eighty-seventh Amendment) Act, 2003.)

[6] The ostensible reason behind the freezing of delimitation in the Indian republic was to not punish states that had curbed population growth (by implementing family planning measures) with lesser seats and thus representation in Parliament. See the thinking of the US Supreme Court on this point in Reynolds v. Sims, 377 U.S. 533 (1964), 583-4: “Illustratively, the Alabama Constitution requires decennial reapportionment, yet the last reapportionment of the Alabama Legislature, when this suit was brought, was in 1901. Limitations on the frequency of reapportionment are justified by the need for stability and continuity in the organization of the legislative system, although undoubtedly reapportioning no more frequently than every 10 years leads to some imbalance in the population of districts toward the end of the decennial period, and also to the development of resistance to change on the part of some incumbent legislators. In substance, we do not regard the Equal Protection Clause as requiring daily, monthly, annual or biennial reapportionment, so long as a State has a reasonably conceived plan for periodic readjustment of legislative representation. While we do not intend to indicate that decennial reapportionment is a constitutional requisite, compliance with such an approach would clearly meet the minimal requirements for maintaining a reasonably current scheme of legislative representation. And we do not mean to intimate that more frequent reapportionment would not be constitutionally permissible or practicably desirable. But if reapportionment were accomplished with less frequency, it would assuredly be constitutionally suspect.”

[7] The ordinance was promulgated on 30 December, 2016, two weeks after the Winter Session wrapped up that year. See the notification of the grace period till March 31, 2017 here: https://dea.gov.in/sites/default/files/24Notification%2030.12.2016.pdf. More recently, the Fugitive Economic Offenders Ordinance was promulgated on 21 April, 2018, two weeks after the close of the Budget Session on 6 April, 2018, to put into place measures to deal with offenders some of whom had fled India as early as 2016.

[8] See opinion of Chandrachud, J., Krishna Kumar Singh v. State of Bihar, 2017(2) SCJ 136, paras 67 and 68 holding that ordinances cannot validly create permanent or enduring, irreversible effects beyond their constitutionally mandated cessation of operation after six months. “Acceptance of the doctrine of enduring rights in the context of an ordinance would lead to a situation where the exercise of power by the Governor would survive in terms of the creation of rights and privileges, obligations and liabilities on the hypothesis that these are of an enduring character. The legislature may not have had an opportunity to even discuss or debate the ordinance (where, as in the present case, none of the ordinances was laid before the legislature); an ordinance may have been specifically disapproved or may have ceased to operate upon the expiry of the prescribed period. The enduring rights theory attributes a degree of permanence to the power to promulgate ordinances in derogation of parliamentary control and supremacy.” The only exception to this rule would be “grave elements of public interest or constitutional necessity demonstrated by clear and cogent material.” See para 70.

[9] Fixed single instant bounded powers – being arbitrary to begin with – inherently permit the arbitrary manipulation of political calendars. Thus, where the initial single instant is of questionable legitimacy, the manipulation of the single instant is also seen as questionable. For instance, while the number of constituencies for all popularly elected houses of the Indian legislatures was fixed to reflect the 1971 census, an arbitrary change was effected in the UT of J&K last year. 7 more constituencies were added to its Assembly to reflect the 2011 census (See Sec 60 read with 62 of the J&K Reorganisation Act, 2019). That delimitation freeze of 1971 was seen as barely legitimate is evident from literature. See KC Sivaramakrishnan, North-South Divide and Delimitation Blues, The Economic and Political Weekly, 35, 3093-97; Alistair McMillain, Delimitation, Democracy and End of Constitutional Freeze, The Economic and Political Weekly 35(15), 1271-76.

[10] Parliament’s deoperationalization of Article 370 and the consequent passage of the J&K Reorganisation Act, 2019, the Andhra Pradesh State Legislature’s passing of the Andhra Pradesh Andhra Pradesh Decentralisation and Inclusive Development of All Regions Act, 2020 and the repeal of the prior capital city law, are stand out instances.

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