The Trauma of Constitutions: Criminalising the Past in Italy and India

This article investigates the role of constitutional texts in memorialising historical guilts and traumas by delving into an unconventional and hitherto unexplored comparison: the Italian Constitution’s final Provision XII against the reorganisation of the fascist party, and the Indian Constitution’s Article 17 against caste-based untouchability. Both Constitutions, written in the same years, encoded their respective hurtful and traumatic pasts into their fundamental laws through these provisions, which explicitly mandated criminal legislations. After reconstructing the two very different contexts from which these constitutional provisions emerged, the article examines the very similar ways in which the two Constituent Assemblies incorporated historically motivated, criminalising clauses in their respective texts. It subsequently analyses the difficulties that legislators in both contexts encountered as they had to pass penal legislations emanating from the Constitutions, as well as the restrictive and contradictory interpretations of these legislations provided by the judiciary. By means of an original incursion into comparative constitutional history, this article contributes to a wider reflection around the interplay between historical traumas, constitutions, and mandates within them as a form of criminalisation of painful pasts.