Negotiating the Past

Constitutions are not only formal-technical documents that apportion rights, organise governmental functions, and distribute powers, but are also deeply symbolic texts that represent the historical and cultural contours of a nation, and exemplify its ideological manifestations.Footnote ¹ Constitutions, as Nomi Claire Lazar has argued, set up a temporal rhetoric for the national community, presenting the conditions of its past, present, and future.Footnote ² As documents that provide a legal basis to navigate a people’s past, they also negotiate its future in light of, more or less, violent legacies.Footnote ³ Constitutions reflect the “birth-pangs of a nation,” insofar as nations often emerge from various historic struggles and injustices, and in asserting a collective self-identity, they are forms of autobiographical emphases and elisions, “reflecting on and describing (graphe) its [a community’s] own self (autos), that is, its past and future life (bios).”Footnote ⁴ In other words, constituting texts are part of the means at a nation’s disposal to record aspects of days gone by and lay the vision for those to come. At times, just as autobiographies go, constitutions also become the means to retrospectively censor the past and attempt to shape the future in light of previous failures or incapacities. For this purpose, they feature not only declaratory but also mandative aspects in the forms of prohibition and criminalisation.

Written constitutions are also considered to be a matter of status, “an indispensable symbol,” a “sign” of “independence and political maturity.”Footnote ⁵ Arnold Zurcher has highlighted the rapid proliferation of constitutional documents after the Second World War, a period of post-war reassessments and readjustments, as well as decolonisation movements, on the global scale: “The world witnessed an outpouring of such documents that is without parallel. Not even the periods of the most violent revolutionary upheaval, like those of 1789, 1850, or 1919, witnessed a greater number of efforts to reduce the basic concepts of national polity to written form.”Footnote ⁶ In 1946, in the immediate aftermath of the War, five countries chose the modality of a constituent assembly to remake their national orders while concurrently expurgating the worst facets of the previous era: China, Czechoslovakia, Venezuela, Italy, and India. In the wake of unprecedented cataclysm, when the world was reeling and emerging from the effects of a devastating conflict, codifying the norms of government and collective aspirations in a written form became the ideal modality for nation-making.

Among these jurisdictions, the Constitutions of Italy and India are paradigmatic instances of negotiating the past, by also criminalising it, in the hope of a reconciled and pacified future. Although emerging from two very different socio-political contexts, they employed the same strategy to deal with respectively pressing issues at the time of their national origins. The Italian and the Indian Constitutions thereby exemplify what Elazar Barkan and Ariella Lang have called “memory laws,” namely, laws that may be employed as “a mechanism to confront the past … to offer historical clarification and even justice to victims” or alternatively as an “attempt to repress demands for redress and whitewash mass atrocities.”Footnote ⁷ Tactics of criminalisation to conciliate and structure contentious histories are often deployed in multitudinous ways for diverse ends, ranging from the emancipatory and redressive to the perverse and oppressive. Whatever be its aspiration and mode, laws manipulating and memorialising past events are ingenious rhetorical tools that provide a ready historical narrative to inform and condition contemporary behavior and future expectations.Footnote ⁸ The focus of this article is precisely the ways in which constitutions distinctively act as forms of “memory laws,” in the specific context of criminalisation through explicit constitutional mandates for penal legislation. By providing an analysis of two exemplary case studies of how fragmented and divisive histories have been negotiated through criminalising provisions within constitutional texts, this article is an exercise in historical and comparative constitutionalism. More specifically, by comparing the ways in which the Italian Constitution has encoded the ignominy of the fascist regime and the Indian Constitution has recorded the violence of untouchability, this article will demonstrate that constitutions can effectively be used to mark a symbolic exit from a painful and traumatic history.

The members of the Italian Constituent Assembly were affiliated with political parties that had been outlawed by the regime and had been directly involved in the resistance movement; their shared traumatic experience and resulting commitment to anti-fascism represented the intellectual and political glue that held the Assembly together. On their part, some members of the Indian Constituent Assembly belonged to the class of the alleged “Untouchables,” having been born and brought up within a system of caste-based discrimination and segregation; that traumatic personal background, coupled with growing consensus on the need for radical social reform, impelled their drafting efforts as they became constitution-makers in the Assembly. Trauma, as Shoshana Felman has noted, can be interpreted as “the basic underlying reality of the law,” and it even impregnates constitutions with new meanings, drives, and foci, reorienting a collective future to prevent the repetition of a shameful past.Footnote ⁹ Following Gad Yair, who has argued that “constitutions are pre-written by traumatic narratives” insofar as national formations often emerge from “long-buried historical pains,”Footnote ¹⁰ this article aims at contributing to the legal-historical scholarship on constitutions by grounding the analysis in collective memory and trauma. We do so by carefully retrieving and juxtaposing the backgrounds and contexts of two constitutional texts, the Italian final Provision XII and the Indian Article 17. By showing the uncannily similar way in which these texts have memorialised historical guilts and wounds, of fascism and untouchability, respectively, this article provides a comparative analysis of the unusual use of constitutional provisions to explicitly mandate criminal legislation. This mandative, and traumatically induced, aspect within constitutional texts is what joins Italy and India in an otherwise distant relationship.

While there are multiple instances of general prohibitive provisions within constitutions (examples include the prohibition of torture, capital punishment, and enslavement), and fewer instances of specifically historical influences,Footnote ¹¹ our examination provides a ready case study for the comparatively inclined reader of two very different contexts where a comparable approach to historical guilt and trauma has emerged, indicating the larger role of constitutions in historical memory and cultural practice compared to the merely formal and rationalist interpretation afforded to it by constitutional law scholarship generally.Footnote ¹² While other works have recently examined different constitutions from a historical and comparative perspective, including Chris Thornhill’s cross-analysis of the Italian, German, and Japanese Constitutions and Justin Collings’s juxtaposition of the US, South African, and German Constitutions,Footnote ¹³ this article considers two texts that remain to be comparatively examined. Notably, these two documents were written in the same years: the Italian Constituent Assembly was first convened in late June 1946, and the Indian Assembly in December that year; the Italian Constitution was subsequently enforced in January 1948, and the Indian Constitution in January 1950. However, despite the similar timeframe, the analogy between the Italian and the Indian cases is, admittedly, far from intuitive: while, at the time of drafting, Italy was a former imperial power (which, even after becoming a republican and democratic state, was still claiming the restitution of its former African colonies),Footnote ¹⁴ India was a newly born postcolonial nation, just emerging from centuries of British colonialism and the contemporaneous partition and scission from Pakistan. From a legal perspective, while Italy is a civil law country, India (despite the prominent role of codification in the country’s legal history) is part of the common law world. Moreover, while fascism was a twentieth-century, twenty-year-long calamity, untouchability represented an ancient tradition; the extent of the respective traumas, therefore, inevitably differed in the two contexts. Furthermore, the two cases strike as dramatically different as soon as one considers not only their socio-political contexts but also, and more importantly, the backgrounds of constitutional drafting and the purposes of their respective criminalising clauses. Whereas Italy underwent a regime change from authoritarianism to democracy, India aimed at transitioning from social oppression to a more egalitarian system at the time of national independence.

Nonetheless, the implications of this comparison emerge compellingly by appreciating the difference, rather than overstating the similarities, between Italy and India. Inspired by Collings, who has recently investigated constitutions as “sites of memory” by juxtaposing three constitutional traditions characterised by, or emerging from, very different “historical evils” (enslavement, apartheid, and Nazism),Footnote ¹⁵ this article argues that it is precisely by virtue of the difference between the Italian and the Indian contexts that the similarity of the method adopted by their Constitutional Assemblies becomes striking. This research adopts the perspective articulated by prominent constitutional scholars, Zachary Elkins, Tom Ginsburg, and James Melton, who have argued that “a set of cases with a highly contrasting set of social and political conditions, but a similar set of outcomes,” can be specially illuminating by revealing the ways in which otherwise disparate constitutions can adopt similar mechanisms of endurance, survival, and engagement with the past.Footnote ¹⁶ Once looked at from this angle, the Italian Provision XII and the Indian Article 17 show how a methodologically identical strategy (of criminalisation through constitutional mandates) was employed to come to terms, apprehend, and reconcile with different traumatic pasts. In other words, it is from the perspective of their constitutions that the two contexts become comparable, and it is by virtue of the socio-political distance between them that their constitutional clauses emerge as a comparative phenomenon in the form of a cross-cultural legal strategy adopted to respond to otherwise incomparable histories. Such an analysis thereby sheds new light on how the encoding of hurtful pasts into constitutional law by means of criminalising provisions was enforced across jurisdictions.

Despite the gulf—geographical, political, and social—separating the two countries and their respective processes of regime change and national independence, it is pertinent to observe how the members of both Constituent Assemblies were aware that they were debating and drafting within a transnational context characterised by epochal transformations, as well as similar preoccupations to their own. For instance, in 1949, the member of the Indian Assembly, H.V. Kamath, directly referred to the constitutive similarity between Italy and India, when he noted that: “In season and out of season … we are passing through a crisis. I am sure that the Italian Constituent Assembly, when it met two years ago soon after World War II was over, was faced with no less grave a crisis.”Footnote ¹⁷ Almost fifty years later, the former prominent member of the Italian Assembly, Giuseppe Dossetti, recalled the constitutional debates of the 1940s in these terms: “Not even the most unprepared … of the Constituent Assembly members could forget the tens of thousands deaths; the radical changes in the world map; the almost total alteration of the ways of life; the decline of European cultures; the diffusion of Marxism to different parts of the globe; the turmoil and novelties in the religious sphere; the urgent need for economic and social reconstruction within and among nations; the emergence of a new solidarity; and the general aspiration to a ban on war.”Footnote ¹⁸

While mindful of the turbulent times and changing geopolitics beyond their respective national borders, the Italian and the Indian Assembly members made sure to include in their draft Constitutions two provisions that relate not to the crimes committed by an outsider on the “natives”—who have set out to emerge as a national self-collective along with the Constitution, as its twin sibling—but are aimed rather at a part of the national self as the aggressor and oppressor. The constitutional provisions criminalise a portion of the citizenry itself, expunging the ignominious event and/or tradition that pervaded much of the collective self’s past, not unlike the Freudian melancholic self that emerges by turning against—and is psychically constituted by militating towards—a part of itself.Footnote ¹⁹ There is, in fact, a peculiar ambivalence that is at play in the rhetoric and working of the Italian Provision XII and the Indian Article 17: they recognise the community not as a coherent, cohesive, stable, and monolithic identity, oppressed versus oppressor, but as capable of, and simultaneously occupying, both sides and sites, bellicose and belligerent, divided and divisive, compliant and complicit. Both Constitutions are cognisant of a fractured and fractious collective, held up by a precarious unity. These constitutional passages uniquely bring to the fore the ways in which a constitution performs the Freudian functioning of anxiety, the dynamics of which reflect the methods used to retrospectively overcome an overwhelming trauma that could not be stopped earlier.Footnote ²⁰ Insofar as they reflect the ambivalent nature of a twin inheritance, Provision XII and Article 17 are the liminal clauses which embed and entrench, within their founding documents, the reaction of two young democracies to the threat of being compromised from within, and thereby (attempt to) reconcile past guilts and traumas through the prospective criminalisation of actions.

This is a ripe time for such an investigation, given the recent burgeoning interest in constitutions as bearers of the scorch marks of history. By demonstrating how the prohibitive aspects of Provision XII and Article 17, along with criminal legislation anticipated in, and mandated by, these two articles, assiduously incorporate traumatic events or traditions into the two countries’ fundamental laws in order to prevent a feared regression, this article demonstrates the specific ways in which constitutional criminalisation has been used to record and sanction contingent and intimate histories, attempting to obliterate a part of the collective self’s identity so as to proffer a renewed hope for an emancipatory national life. We argue that it was through the idiosyncratic measure of adopting criminalising provisions within constitutional texts that members of both Constituent Assemblies hoped to ensure the non-return of either archaic or recent pasts in future social and political vicissitudes. The Italian and the Indian Constitutions, in this way, written at the same time in the post-war period, and emerging from two very different contexts, exemplify the similar ways in which national collective selves countenance the past, memorialise guilt, record traumas, prevent repetition, and offer a hope of political freedom and social justice in an otherwise fractured terrain. Constitutions are formative sites not only of state-formation, as Upendra Baxi has argued,Footnote ²¹ but also of contentious struggles aimed at shaping the new nation as per particular aspirations. Seen in this light, Provision XII and Article 17 represent a watershed between an appraisal of one’s history as disgraceful and the aspirational and emancipatory creation of a legal medium out of an otherwise violent state of affairs. Criminal law, explicitly mobilised by both constitutional texts, is the way in which this has been addressed in both contexts.

In the next section, we delineate the background and circumstances in which the Italian Provision XII came into existence. By paying close attention to what the Constituent Assembly envisaged, and how some of the “transitory and final provisions” were entrenched as permanent within the constitutional text, we 7show the precise method by which the trauma of fascism, and the guilt over it, led to the criminalisation of the reorganisation of the Fascist Party. We also show the ways in which this declarative provision was followed by specific legislation enforcing the spirit of Provision XII. In the section following that, we chart out the constituting process through which Article 17 was unanimously enshrined as a criminalising provision against caste-based untouchability. We then provide a synoptic overview of the legislation that was directly derived from the mandative aspect of Article 17, and how the judiciary has engaged with this legal framework. Taken together, we provide a juxtaposition of the specific ways in which a former imperial power and a postcolonial nation have adopted in the same years analogous strategies to counteract the ignominious aspects of their respective identities and obliterate a part of the self in favor of a more egalitarian and democratic political and social order. We assess, in the conclusion, whether such a criminalising strategy, in each of the cases, has been successful or whether these provisions remain, for all practical purposes, symbolic dead letters.

Constitutionalising Trauma I: Italy’s Provision XII

Italian society—currently governed by a party which descends from the demise of the neo-fascist MSI (Movimento Sociale Italiano)—appears to be still characterised by what John Foot has called a “divided” public memory resulting from contrasting interpretations of the fascist past and the resistance movement.Footnote ²² Attempts to reconcile that dividedness have sometimes recovered Benedetto Croce’s definition of the dictatorship as an execrable, yet exceptional, “parenthesis” in the country’s history; as if the fascist ventennio was a merely transitory interruption to, and a “momentary lapse” in, an otherwise gloriously liberal tradition.Footnote ²³ Within this context, the provision in the country’s fundamental law against the reorganisation of the Fascist Party is doubly remarkable. Not only does this explicitly anti-fascist commitment contrast with the silences and omissions which have historically played a role in Italy’s “divided memory,” but it also openly repudiates the idea—implicit in the “parenthesis” notion—that the roots of democratic Italy should lie in the pre-fascist era rather than in an uncompromising condemnation of the regime.Footnote ²⁴ It is well-known how the shared “anti-fascist paradigm”Footnote ²⁵ provided the Christian democrats, the socialists, the communists, and the liberals comprising the Constituent Assembly with the common ground which they needed to write the country’s new constitutional text together from mid-1946 to late 1947.Footnote ²⁶ While the desire for national reconciliation after twenty years of authoritarianism and two years of civil war led to the passing of measures which actually frustrated the plan to de-fascify the judiciary and the public administration, as well as to extending a de facto general amnesty for ordinary and political crimes perpetrated during the Nazi-fascist occupation,Footnote ²⁷ the Constitution, enacted on 1 January 1948, was intentionally conceived as the foundational document bearing testament to the collapse of the fascist state.

Several articles in the Constitution incorporate the Constituent Assembly’s rejection of the previous regime, from the recognition of the inalienable rights and equality of all citizens (Articles 2 and 3) to the repudiation of war (Article 11). Nonetheless, it is only in two of the eighteen “transitory and final provisions,” located at the end of the Constitution following 139 articles, that this latent anti-fascist background becomes patent. According to Provision III, members of the Constituent Assembly who had been sentenced to a five-year imprisonment by the fascist Special Tribunal for the Defence of the State—and who were, therefore, proven anti-fascists—would become part of the first republican Senate. Even more notable is Provision XII: while, according to its first clause, “the reorganisation, under whatever form, of the disestablished Fascist Party is prohibited [è vietata],” its second clause excluded “the leaders responsible for the fascist regime” from both the electorate and the body of eligible candidates for the following five years. Another irrevocable rupture with the previous order, in which the monarchy had been complicit with fascism, is provided by Provision XIII, which forbade the descendants of the House of Savoy from entering the national territory, deprived them of the right to vote and the eligibility to be elected, and confiscated their properties.

From a formal point of view, the eighteen transitory and final provisions represent a peculiar addition to a constitutional text, which, unlike most other contemporary constitutions, includes, for the rest, only proper articles and does not even feature a preamble. In fact, the majority of the Constituent Assembly wanted even the most general principles to be formulated in the guise of constitutional norms, and therefore restrained themselves from writing an introductory “mission statement” whose legal force could be questioned.Footnote ²⁸ The function of the transitory and final provisions—which, as agreed upon by most constitutionalists, are an integral part of the Constitution despite their only seemingly marginal location—is that of setting the terms of the transition from the old to the new order, establishing norms which are sometimes temporary, at other times final, and which in all cases represent a deviation from the general and a-historical tone of the principles enunciated in the previous 139 articles.Footnote ²⁹ As far as Provision XII is concerned, it is now widely accepted that, whereas the second clause is explicitly transitory, the first is permanent.Footnote ³⁰ Its status is no different, therefore, from that of other constitutional articles. Significantly, it was initially discussed and drafted as part of Article 49, which entrenched the citizens’ freedom to associate into parties, and subsequently “slipped” among the final provisions for reasons of unspecified “editorial opportunity.”Footnote ³¹

As remarked by several legal scholars, Article 49, by ruling that “all citizens have a right to freely associate with each other into parties in order to contribute to determining national politics with a democratic method,” ratifies the birth of an “open democracy,” as opposed to the model of a “protected democracy” outlined in the German Fundamental Law of 1949. While Article 21 of the Grundgesetz declares that parties aimed at undermining the democratic order are unconstitutional,Footnote ³² the Italian Article 49, by mandating that political parties ought to respect democratic methods, only dictates a procedural limitation to party organisation without imposing any ideological check on their principles.Footnote ³³ Article 18 incorporates further limitations to the freedom of association, from which secret and militarised societies are excluded.Footnote ³⁴ Hence, according to the joint letter of Articles 18 and 49, political associations animated by ideas which are undemocratic and even unconstitutional—as long as they comply with institutional procedures and are not characterised by secrecy or militarism—are not prohibited by the Constitution.Footnote ³⁵ For this reason, monarchical parties are not unconstitutional even though their purpose is contrary to the Constitution (as per Article 139, stating that “the republican form” can never be amended). This remarkable openness can be explained by the very same history of the resistance, during which parties which had previously been outlawed by fascism took governing functions upon themselves within the National Liberation Committee after 1943 and assumed constitutional powers in 1946.Footnote ³⁶ With Articles 18 and 49, the Constituent Assembly constitutionalised party competition and opposition. The only exception to the freedom of association—that is, the only circumstance in which ideological opposition is made a crime and becomes unconstitutional—is enunciated by the first clause of Provision XII against the Fascist Party. A persistent historical guilt is now entrenched as a marked exception in the Italian constitutional politics of party formations.Footnote ³⁷

The constitutional Provision XII was not the first legal norm prohibiting fascist organisations in Italy. Decree 195 was passed in April 1945 to “punish fascist activities in liberated Italy,” targeting those who pursued such activities within armed gangs and attempted to re-establish the Fascist Party “under whatever form or denomination.” Subsequently, in February 1947, Article 17 of the Paris Peace Treaties imposed the international obligation on Italy to prevent the reorganisation of fascist movements aimed at “depriving the people of their democratic rights.” Finally, in December 1947, the very same Constituent Assembly passed Constitutional Law 1546, valid for five years, which outlawed the reorganisation, “under whatever form, of the disestablished Fascist Party” (Article 1), the performance of “fascist activity” (Article 3), the “public exaltation of fascist figures and ideologies,” as well as the organisation of “demonstrations featuring a fascist character” (Article 7); monarchical parties were also outlawed, but only as long as they tried to re-establish the monarchy “by violent means” (Article 2).Footnote ³⁸ Translating these provisions into a constitutional norm was by no means an easy task.

During the Constituent Assembly debates around Article 49 in November 1946, after maintaining that it was imperative to “exclude from democracy those who are its proven enemies,” Palmiro Togliatti, the Secretary of the Communist Party, also stressed the necessity to be careful in wording what would become Provision XII, lest it be later weaponised to arbitrarily outlaw other parties on grounds of their allegedly “fascist” principles.Footnote ³⁹ As a consequence, the members opted for a formula which would specifically proscribe a historically determined political formation: Provision XII forbids not any generic party but rather the disestablished Fascist Party.Footnote ⁴⁰ Nonetheless, several scholars have convincingly argued that the Assembly was not only looking backward but also forward by specifying that the reorganisation of the Fascist Party was prohibited “under whatever form,” cognisant of the plurality of modes through which fascism could resurface. That Provision, from this perspective, features a retrospective character by censuring the guilt and recording the traumas of the country’s fascist past, while also projecting its own normative power into the future.Footnote ⁴¹ Having the recent history of the Fascist Party in mind, the members conceived of Provision XII as a barrier, as Alessandro Pizzorusso put it, against the unforeseeable (and therefore impossible to legally define and forbid) developments of neo-fascism.Footnote ⁴² Another problem related to Provision XII concerns its “harmonisation” with Article 49: is that Provision an exception to the Article sanctioning the freedom of association, thus representing a “rift” within the constitutional text?Footnote ⁴³ Or is it rather a more specific reiteration of that same Article, which, by maintaining that parties must comply with the “democratic method,” already implicitly outlawed the intrinsically anti-democratic Fascist Party?Footnote ⁴⁴

These were some of the issues raised during the debates around the drafting of Law 645 of 1952, commonly known as “Scelba Law,” named after the Minister of the Interior.Footnote ⁴⁵ By including Provision XII in the Constitution, the Constituent Assembly had bound the legislature, insofar as the first clause of the Provision necessitated supplementary, “actualising” criminal legislation.Footnote ⁴⁶ Scelba (amended, with minor changes, by Law 152 of 1975) forbids the organisation of associations pursuing the anti-democratic goals of the Fascist Party by means of violent methods and/or racist propaganda (Article 1); it further outlaws, as separate crimes, the public exaltation of fascist figures, principles, and events (“apology of fascism” as per Article 4) as well as “fascist performances” (by means of words, gestures, etc.) at public assemblies (Article 5).Footnote ⁴⁷ Subsequently, Law 205 of 1993 (the so-called “Mancino Law”) extended the scope of Scelba by establishing an increase in the penalty in case of an “apology” crime involving racist ideas and methods (Article 4).

Whereas, in January 1952, Minister Scelba referred to the first clause of Provision XII, which his draft law set out to “actualise,” as the “spiritual, historical, and legal foundation of the Italian Republic,”Footnote ⁴⁸ judicial discourse has, over the years, limited the outreach of this law, which in turn resulted in a restrictive interpretation of Provision XII.Footnote ⁴⁹ It was the Constitutional Court which, in a few rulings issued between 1957 and 1974, confirmed the constitutionality of Scelba while at the same time establishing that it could be employed to disband neo-fascist associations and prohibit neo-fascist activities only in the event of a “concrete” or “considerable danger” of organisation of such movements.Footnote ⁵⁰ As a consequence, only two neo-fascist movements were disbanded,Footnote ⁵¹ and the law was not successfully mobilised to prevent the integration of the MSI within the parliamentary spectrum.Footnote ⁵² The emphasis on “concrete danger” (without which the apology of fascism and “fascist performances” had generally not been deemed to be crimes) has been recently mitigated by the United Penal Sections of the Supreme Court of Cassation in a ruling of January 2024, concerning a neo-fascist commemoration held in Milan in 2016. By establishing a continuity between “concrete” and “presumed” danger, the ruling has resulted in a partial revitalisation of anti-fascist legislation.Footnote ⁵³

The aftermath of Provision XII was not limited to the contested legitimacy of its “actualising” legislation: challenges have also been brought against the Provision itself as part of the constitutional text. Following a first attempt in 1982, in 1994 (while the “descendants” of neo-fascism were becoming part of the government coalition for the first time), some Members of Parliament affiliated to the liberal and libertarian Radical Party advanced a proposal for a constitutional law aimed at repealing both Provision XII and Provision XIII.Footnote ⁵⁴ Whereas Provision XIII against the House of Savoy was eventually declared “exhausted in its effects” by Constitutional Law 1 of 2002,Footnote ⁵⁵ Provision XII remained in force. In 2011, a group of right-wing Senators submitted another draft constitutional law for its repeal.Footnote ⁵⁶ The claims advanced by the Radicals and the Conservatives in 1994 and 2011, respectively, were remarkably similar. On the one hand, both groups stressed the contingent character of the Provision, as belonging to bygone political circumstances. According to these politicians, the constitutional mandate was no longer “transitory and final” [transitoria e finale] but rather “past and gone” [transitata e finita]. On the other hand, the proponents emphasised the urgency of disposing of all remnants of “special legislation” supposedly infringing on the “principle of liberty” by postulating a “crime of opinion.”Footnote ⁵⁷

However, other court decisions have, over the past few years, shed a different light on the deepest meaning of Provision XII. In 2013, the Fifth Section of the Council of State ruled that the “Fascismo e Libertà” movement be excluded from a local electoral competition based on that Provision.Footnote ⁵⁸ As per the ruling, the freedom to associate into political parties, sanctioned by Article 49 of the Constitution, is “preliminarily and preventively” limited by the first clause of Provision XII, which, by mandating that certain movements be “forbidden by the legal order from the beginning [originariamente],” established an “original prerequisite to political participation.”Footnote ⁵⁹ Therefore, whereas the second clause of Provision XII—the backward-looking, punitive norm against the figures responsible for the fascist regime—was not only unequivocally temporary but also explicitly formulated as an exception to the Constitution’s Article 48 sanctioning the universality of the right to vote, its first, permanent clause against the reorganisation of the Fascist Party was not only forward-looking but can also, as the Council of State’s ruling suggests, be conceived as foundational for the entire constitutional text.Footnote ⁶⁰

As suggested by scholars like Barbara Pezzini and Giulio Enea Vigevani, the first clause of Provision XII should be understood not as an exception to Article 49, an ex-post anomaly vis-à-vis the generalised freedom of association, but rather as a precondition to that very Article, an ex-ante, ab origine limitation to its validity aimed not at punishing neo-fascist organisations but at banishing them from politics altogether.Footnote ⁶¹ This same interpretation of Provision XII was also advanced at the drafting of Scelba in June 1952: the constitutional Provision was not a “repressive” measure “break[ing] [other] constitutional norms” but was rather “defensive and preventive,” by identifying those who, in the new Republic, were to be placed “outside the Constitution and outside each and every law descending from it.”Footnote ⁶² Hence, in spite of its location at the end of the constitutional text, the first clause of Provision XII is, as Felice Blando put it, “the provision directing all other provisions.” As maintained in 1952, “the Constitution is enforced as long as the norm prohibiting fascist activities is rigorously applied.”Footnote ⁶³ This norm ultimately becomes, therefore, not merely a provision against a specific party but rather a categorical condemnation of the political project embedded in its ideology. Provision XII, in effect, portrays the Italian Constitution, as Marta Cartabia and Nicola Lupo noted, as a “never-again” constitution, “renouncing the previous regime” and mandating its non-return.Footnote ⁶⁴

By including a Provision relegating fascism to a previous era (“vietare,” namely, to prohibit, comes from the Latin vetus, “old,” and etymologically means “to put something aside among the old things”), the Italian Constituent Assembly turned the country’s heinous history into the backbone of its fundamental law. One of the most prominent of their number, Piero Calamandrei, stressed that the Constitution was the outcome of “a political struggle between the past and the future, from which a new legal order was born.”Footnote ⁶⁵ Provision XII, while processing the trauma of the authoritarian regime, the World War, and the Nazi-fascist occupation,Footnote ⁶⁶ also encodes a cry of alarm about the danger of neo-fascist revivals. By maintaining the outdatedness of Provision XII and providing a restrictive judicial interpretation of its implementing legislation, the nation faces the risk, in the words of Corrado Caruso, of a “psychoanalytical suppression of the foundational trauma of its republican Constitution.”Footnote ⁶⁷

Despite the diversity of contexts, a comparably peculiar interplay between the spirit and the letter of the Constitution and its judicial interpretations can be found as we move from Southern Europe to South Asia, and more specifically to India, where a different kind of historical trauma encountered similar difficulties as it was translated into law through an analogous mechanism of a prohibitive constitutional provision mandating criminal legislation.

Constitutionalising Trauma II: India’s Article 17

On 26 January 1950, when India’s Constitution came into force, the nation, not unlike Italy, entered a life of contradictions. As B.R. Ambedkar, the Chairman of the Drafting Committee and a prominent Dalit member of the Constituent Assembly, prophesied: “In politics we will have equality and in social and economic life we will have inequality.”Footnote ⁶⁸ The historical ignominy of caste closely tailed the founding of the nation. As D.D. Kosambi has articulated, caste in early Indian history emerged from class: “Caste is class at a primitive level of production, a religious method of forming social consciousness in such a manner that the primary producer is deprived of his surplus with the minimum coercion. This is done with the adoption of local usages into religion and ritual, being thus the negation of history by giving fictitious sanction from ‘times immemorial’ to any new development, the actual change being denied altogether.”Footnote ⁶⁹ A pernicious and pervasive form of discrimination based on hereditary attributes assigned at birth, resistance to the rigid social system of caste provoked radical designs in the constitutional text. Untouchability, which designated the Dalits (which literally meant “oppressed” or “broken” in Marathi, and referred to Indian citizens who were outside the fourfold Hindu social classification of chaturvarna) as “Untouchables,”Footnote ⁷⁰ was abolished as per Article 17 of the Constitution,Footnote ⁷¹ and all forms of practising untouchability, from drawing water from public wells to being denied entry into temples, were made offences punishable by law.Footnote ⁷²

As Ambedkar elucidated, the notions of “purity” and “pollution” were crucial motifs that structured the social system of untouchability: “The Hindus who touch them and become polluted thereby can become pure by undertaking purificatory ceremonies. But there is nothing which can make the Untouchables pure. They are born impure, they are impure while they live, they die the death of the impure, and they give birth to children who are born with the stigma of Untouchability affixed to them. It is a case of permanent, hereditary stain which nothing can cleanse.”Footnote ⁷³ What eventually became offences mandated by the Constitution carried the weight of historical inequity, as forms of traditional discrimination, ostracisation, and exclusion. Ambedkar’s insistence on “a social code” of untouchability brings to the fore the extant sociolegal sanctions that attended practices of untouchability, which Article 17 sought to abolish: “In every village the Touchables have a code which the Untouchables are required to follow. This code lays down the acts of omissions and commissions which the Touchables treat as offences.” Ambedkar goes on to provide an exhaustive list of provisions—which the Untouchables must abide by—that comprised such a social code, ranging from separate and segregated dwelling quarters to kinds of names that must be bestowed on Untouchable children (evoking contempt); from prescriptions of behavior, appropriate demeanor, dress, and manners, to materials that can be used for building houses; from rules of proximity, regulations of wealth and acquisitions, and kind of languages spoken to marks that must be borne on the body and occupations that only Untouchables can perform. In essence, every aspect of an Untouchable’s life and death was clearly circumscribed and encoded as per the set of prescriptions of untouchability.

It was this totalising aspect of caste-based sociolegal codes that the Indian Constitution sought to countervail through Article 17. As Ambedkar noted, the political structure, in the form of the constitution, ought to take into account the social bases that give the political its form: “In framing a constitution the Social structure must always be kept in mind. The political structure must be related to the social structure. The operation of the social forces is not confined to the social field. They pervade the political field also.”Footnote ⁷⁴ The anti-caste provisions in the Indian Constitution emerge from this understanding of a continuity between the social and the political. The traumatic marks of historical caste-based violence were now memorialised through a historically relevant penal provision in the Constitution.Footnote ⁷⁵ Centuries of oppression, marginalisation, and exploitation led, at the moment of the nation’s founding, to a resurgent desire to annihilate the roots of caste and untouchability. Yet, despite this unusual decision to inscribe a criminalising provision within a constitutional text, Ambedkar’s scepticism apropos a national life of contradictions was not unfounded.Footnote ⁷⁶

What undergirds the notion of untouchability has historically been “defilement, pollution, contamination, and the ways and means of getting rid of that defilement.”Footnote ⁷⁷ Social classes were in toto categorised as either pure, and therefore higher in the system of gradations, or impure, and therefore lower or outside. A historical attendant of the caste system, what Ambedkar believed was created out of a “superimposition of exogamy on endogamy,” untouchability was a potent means of rigid communal segregation. Based on a rough delineation of communities, caste and untouchability, originally designated via occupational classes and matrimonial regulations, eventually received scriptural sanction, which entrenched the segregations.Footnote ⁷⁸ At the time of the Constitution’s drafting, India had already witnessed several decades, if not centuries, of anti-caste resistance by social reformers and mystics ranging from the likes of Kabir, Jyotiba and Savitribai Phule, and Periyar,Footnote ⁷⁹ to the more contemporary Mohandas Gandhi and Ambedkar.Footnote ⁸⁰ The Constitution’s penal provision was born out of sustained lineaments of this anti-caste movement. The provision, thereby, represented centuries of trauma and violence, and the corpus of the constitutional text mimics the burdens of lacerations and lashes on the corpuses of the Untouchables. Law, in effect, as Robert Cover articulated in another context, was wielded “in a field of pain and death,” and utilised as a forceful tool of emancipation and revolutionary social justice.Footnote ⁸¹

Article 17 was first conceived through two draft provisions, meant for Article 11 of the draft Constitution, posited by K.M. Munshi and Ambedkar, respectively, in the Fundamental Rights Sub-Committee of the Constituent Assembly. The Sub-Committee accepted, almost without change, Munshi’s proposal as it currently stands in Article 17.Footnote ⁸² The proposal was accepted by the Advisory Committee and subsequently by the Constituent Assembly without much debate. Although Naziruddin Ahmed suggested that the form of untouchability envisaged in draft Article 11 should be made clear, that is based on caste, this suggestion was negatived.Footnote ⁸³ In effect, with the Constitution coming into force, untouchability was proscribed by means of the constitutional mandate. Just as the Italian Provision XII mandated, and was followed by, criminalising legislation, such as Scelba and Mancino, giving effect to the provision, so too Article 17 mandated, and was followed by, specific criminalising legislation emanating directly from it. As Justice K. Ramaswamy of the Supreme Court of India noted in a 1993 decision, these legislations were not to be understood as mere penal laws, what he termed as “penal law simpliciter,” but forms of aggravated penal laws, bearing the historic weight of untouchability. Article 17 and its offspring were the result of a criminal jurisprudence made to countenance social trauma.Footnote ⁸⁴

The first post-constitutional legislation to arise out of the force of Article 17 was the Untouchability (Offences) Act, 1955.Footnote ⁸⁵ Although the Lok Sabha (Lower House of Parliament) debates reveal a predominant support for such a legislation being passed, there were considerable concerns regarding the efficacy of a criminal provision in abolishing untouchability. Multiple provisions in the Act deal with explicit punishments to be dealt out for, among other things, social and religious disabilities, and overt practices of untouchability itself.Footnote ⁸⁶ The debates of the Lok Sabha are replete with various voices echoing the historical traumas that have led to the promulgation of the legislation, emanating from the enabling provision in the Constitution. When the Minister of Home Affairs and States introduced the bill to the House, he explained, evoking Gandhi, that such a framework ought to be discerned as a “prayaschit” (atonement) for the oppression of the past.Footnote ⁸⁷ Expiation for past sins was to propel legal frameworks and regulations. To penalise untouchability was meant to not only prevent the repetition of age-old customary violence but also to embody a constitutional and legal mark of a violent history. A mark that remembered the injustices of the past and provided posterity with a veritably heinous precedent to countenance. Guilt, trauma, and anxiety fueled the much-delayed recognition of social injustice in the form of constitutionally sanctioned criminal laws. India bears within its Constitution, and legislation directly anticipated in the Constitution, marks and traces of its social and collective guilt on the question of caste. Atonement implies a sense of guilt, although whether the guilt inscribed within the legal frameworks proved to be useful was another question altogether.

The debates in the Lok Sabha also reveal a profound sense of insufficiency with the proposed penal frameworks. Many speakers suggested that criminal provisions alone would be ineffective in rooting out untouchability unless they are coupled with positive measures to ensure the emancipation of the Untouchable castes.Footnote ⁸⁸ The overwhelming sense of the members of the House had been that such provisions, while necessary, would not be effective by themselves in the amelioration of the Untouchables unless other welfare schemes were simultaneously promulgated by the Union Government. When the bill returned to the House after a year, and after a Joint Committee of both Houses had worked on it, there were not many changes to the bill, except for the removal of a definition of untouchability in an earlier draft and an increase in the punishments to make the offences of a stricter character.Footnote ⁸⁹ Barring minor changes to some of the provisions, on a clause-by-clause reading, the entire bill was passed without many changes to the draft that had come out from the Joint Parliamentary Committee. It was further decided, after much discussion within the House, that considering Articles 15 and 16 already provide for substantive positive measures based on affirmative action and reservations, reproducing similar measures within the Untouchability Offences Bill would become redundant, given that the latter, as argued by G.B. Pant, was to emphasise and foreground the criminalisation of untouchability.Footnote ⁹⁰ The zone of criminalisation, it was urged, must be a class apart and separate, indicative of the special legislative status that must speak to the declarative aspect of Article 17. In effect, the Untouchability (Offences) Act was a direct offshoot and offspring of the mandative portion of that Article.

Courts in India have been more or less proactive in enforcing the textual provisions, although the enforcement of the spirit of the Constitution and subsequent legislation has been paltry, at best.Footnote ⁹¹ Although the Supreme Court of India has, on multiple occasions, noted how caste and caste-based crimes have evolved from their erstwhile sphere of sacrality and religious sanction, over the years, into ossified social classifications, far surpassing their original religious referents, judicial discourse on caste-based atrocity has prevaricated and remained ambiguous.Footnote ⁹² This is most directly evinced in the judicial discourse on protection from caste-based offences. For instance, in 1989, when a second legislation was enacted to further prevent atrocities based on caste, through the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, the Supreme Court had to take up the question, on three separate occasions, of whether the Act, and more specifically Section 18, was ultra vires of the Constitution, resulting in three different resolutions each time. Whereas in Balothia, the Court held that Section 18 (which stipulated that the anticipatory bail protections of the Code of Criminal Procedure do not apply to caste-based atrocities) was not violative of the right to equality provisions of the Constitution given that caste-based atrocities, due to their peculiar power dynamic and chilling-effect, constituted a separate class and therefore cannot be compared with offences under the Indian Penal Code, the Court diluted this decision in Subhash K. Mahajan, under the unfounded substantiation that caste-based complaints were hyperbolic and often false.Footnote ⁹³ In Subhash Mahajan, the Court had mitigated the effect of Section 18 by mandating that prior governmental approval must be sought before securing an arrest under the provisions of the Act, ignoring the original object of the Act to prevent intimidation of victims of caste-based atrocities arising out of practices of untouchability. Subsequently, the Government of India amended the Act and inserted a new provision, in the form of Section 18A, which nullified the directions of the Subhash Mahajan Court. The amended provision was upheld by the Supreme Court in its most recent iteration on this issue in Prathvi Raj Chauhan.Footnote ⁹⁴ These contradictory and often opposing judicial impulses can be read as symptoms of an ambivalent anxiety that emanates from divergent engagements with caste and untouchability. In other words, the splits and schisms that attend these judicial decisions originate from conflicting appraisals of untouchability, which endures as a latent force despite the seeming and avowed unanimity of the judiciary in apprehending it.

The judicial history of Section 18 of the Prevention of Atrocities Act represents not only the inconsistencies and prevarications of judicial reasoning when it comes to caste-based crimes but also the larger uncertainties that lie at the foundations of the judicial discourse on caste.Footnote ⁹⁵ Although India has not witnessed a concerted effort to repeal Article 17 or its offspring, unlike the repeated challenges in Italy, there have been sustained aspirations to soften its blow. While the Supreme Court has reiterated that legislations aimed at caste-based violence emerge from the special criminal measures that have been entrenched within the constitutional text to target centuries of violence against the Dalits, these measures are often institutionally watered down or otherwise disregarded and countervailed by administrative mechanisms, as Dag-Erik Berg has demonstrated.Footnote ⁹⁶ While Article 17, and legislations emanating from this enabling provision, were affirmed as separate and special insofar as they encoded historical injustice through emancipatory proliferations,Footnote ⁹⁷ this rhetoric has remained unevenly applied and endorsed in the specific instances that came before the institutional mechanisms. What remains clear, however, despite the multiple renditions and often conflicting legacies of court decisions, is a consistent recognition of Article 17 as a record of historical violence and trauma, even though the Courts prevaricate on whether caste-based violence is equally pervasive today.Footnote ⁹⁸ That caste-based atrocity, in the various practical forms of untouchability, was the traumatic inducement for Article 17 remains judicially accepted, despite inconsistencies in its contemporary appraisals.