A Life In Four Acts

EARLIER THIS MONTH VIOLENCE BROKE OUT in Parbhani, a sleepy district in the Marathwada region of Maharashtra. The cause of the violence was rather unusu­al: a replica of the Constitution set in concrete that rested near the statue of BR Ambedkar outside the railway station had been vandalised. In no time ‘activists’ went on the ram­page destroying vehicles. A memorandum was handed to the district magistrate demanding death penalty for the person allegedly responsible for the act. If one goes by cur­rent anxieties about the fate of the foundational document of the republic, one can possibly rationalise the behaviour of these activists.

Constitutionalism in India is a fashion that would make even the authors of The Federalist Papers blush. But this contemporary political fashion that is a rage in India is only a reflection of the Opposition’s flailing politics. The reality is more complex. The era in which the Constitution could be ‘damaged’ is now history as the Supreme Court has over time encased parts of the Constitution in stone, beyond the legislative power of even the most cohesive Parliament. There is something timeless about this kind of ‘constitutionalism’ to the point that normal politics is now in danger of being strangled by an unelected elite.

ACT I DISTORTIONS

The first challenge to constitutionalism—un­derstood as political power in a regime being subjected to disciplinary constraints imposed by a special text—came just a year after the commencement of the Constitution in June 1951. The 1st amendment to the Constitution was meant to circumvent ‘difficulties’ due to certain judicial decisions on Fundamental Rights. It was a major amendment, affecting 10 Articles and added the Ninth Schedule to the Constitution. The latter gave immunity to laws from judicial scrutiny after their listing in the schedule. The most grievous changes that resulted from the amendment dealt a blow to the fundamental freedoms in Article 19 by incorporating “reasonable restrictions” in the article. In that age and time when the executive could ‘overawe’ the other organs of the state, this was as good as giving carte blanche to the government to restrict free­dom. This was also the start of the process that ultimately destroyed the right to property as a Fundamental Right, a development that stunted India’s economic growth.

It is interesting to note that the amendment was made by the Constituent Assembly and not an elected Parliament: the first Lok Sabha was constituted in April 1952.

The list of constitutional amendments that distorted both the Constitution and constitutionalism is considerably longer. If the 1st Amendment showed that anything was possible by way of an amendment, more severe changes lay ahead. To sample a few, the 39th Amendment was breath-taking in scope: it immunised the election of the prime minister and the speaker of Lok Sabha from judicial scrutiny or inquiry in case of a dispute. It was the closest In­dia came to losing its democratic character. The amendment was enacted in August 1975, two months after the imposition of Emergency. The worst was yet to come: a year later, in November 1976, the 42nd Amendment virtually rewrote the Constitution, erasing the distinction between constituent and legislative power. Instead of being a higher-order law, as a constitution is normally understood, it became something that could be twisted out of shape by Parliament that was not exactly free.

That era came to an end by 1982 when the Supreme Court gave its verdict in the SP Gupta case when it held that “consultation” in Article 124 of the Constitu­tion, which deals with the establishment of the apex court, was implied to mean “concurrence” of the top court in the appointment of judges.

ACT II CIVIL RELIGION

The year 1982 effectively marks the start of the contemporary understanding of constitutionalism in India. What began as an attempt to undo the worst ex­cesses of executive overreach ultimately turned into judicial overreach. Today, not only are most constitutional amendments subjected to judicial scrutiny but even ordinary laws reach the doorstep of the apex court as a matter of routine. Influential lawyers, backed by the Opposition, are quick to challenge the deci­sions of Parliament. The result is a strange situation: it is as if the enactments of an elected Parliament are illegitimate unless they are approved by the Supreme Court. This is a travesty in the name of constitutionalism.

The situation has now acquired a perverse dimension. As long as a Chief Justice of India (CJI) is amenable to these challenges to laws and amendments, matters remain calm. But the moment a CJI is seen as accommodating the government, there is trouble ahead. Accommodating is perhaps not a word to be used for a CJI but that is exactly what this clique of lawyers and their other friends think and say about the highest judicial authority in India in case his decisions are not seen as sufficiently antagonistic to the government. Successive CJIs from Justice Dipak Misra to Justice DY Chandrachud have faced the brunt of this cabal. It is interesting to note that over time a notion has emerged that the Supreme Court is the “guardian of the Constitution”. But this has seen a further evolution: today the “basic structure” of the Constitution is considered to be a de facto “ideological frontier” that no government, but especially the current one, can be allowed to cross. Never mind what the people of India want or what is well within the powers of Parliament to do.

This is not constitutionalism but a very special and destructive variety of poli­tics: anything that a popularly elected government does is dubbed unconstitu­tional or against the basic structure of the Constitution. The latter is, of course, a spurious doctrine that was invented by the Supreme Court to resist the executive in the 1970s. Since then, it has acquired a life of its own and has given almost unchecked powers of interpretation to the top court. It is another mat­ter that in the decade that the Narendra Modi government has been in power it has hardly al­tered the struts of the Constitution in a manner that could even remotely be described as uncon­stitutional. The beauty of expressions like ‘un­constitutional’, ‘against federalism’ and ‘against the basic structure’ is that they are so flexible as to have no content at all. Not once have their us­ers—not once—bothered to spell out in detail how a particular Bill, Act, or an amendment to the Constitution fits those descriptive terms.

ACT III AGAINST FEDERALISM

The Indian Constitution divides powers be­tween the Centre and the states. These divisions broadly follow the break-up of legislative powers between Parliament and the state Assemblies. The detail of these subjects and their divisions is enumerated in the Seventh Schedule that has the ‘three lists’: the Union, the State, and the Con­current Lists. This division lies at the core of the so-called federalism that has become a chant of sorts for politicians and activists of a particular kind. The reality is that these divisions are based on a rational division of what can be done at each level of governance. For example, there are public goods like maintenance of law and order that are best suited to local authority and there are others like national defence and checking of inter-state crime that require centralised authority. These divisions are, by and large, rational. There are distortions in these divisions as well. For example, agriculture is part of the State List but the burden of funding public procurement of foodgrains falls on the Centre.

But such are the distortions in the understanding of ‘federalism’ that robust Central authority is now considered anti-federal. Over time, federalism has acquired a sinister meaning—that Central authority is to be opposed and all manner of separatist and fissiparous tendencies are considered to be a part of India’s federal structure and federalism. The latter are said to be protected by the Constitution. It is another matter that India’s Constitution is wholly unitary and only pays lip service to federalism. Even a cursory reading of some of the articles in the Constitution will dispel the notion of federalism. Sample these: Article 3 allows Parliament to alter the boundaries of a state and reduce or increase its area. Article 249 allows Parliament to legislate on a matter on the State List in case of national interest. Article 356 allows the president to “assume” the func­tions of a state government. Such features are not found in the constitutions of the US and Australia, countries with truly federal systems.

In India the meaning of the word federalism is wholly political. What it means in constitutional terms and what it implies in the run-of-the-mill op-eds and off-the-cuff remarks by politicians who have acquired the expression are laughably divergent. This is also a part of India’s story of constitutionalism.

ACT IV PRISTINE GLORY

The term civil religion was used to describe constitutionalism by the legal schol­ar Martin Loughlin in his book Against Constitutionalism (2022). (The definition of constitutionalism used above is that of Loughlin.) In the book he argues how and why the meaning of constitutionalism has changed over time and now democracy and constitutionalism are considered practically indistinguish­able. Something similar has happened in India, a country very different from Western countries where constitutionalism was invented.

After 74 years, India’s liberal elite—exasperated at the repeated and continu­ing setbacks of its favourite political parties, now consigned to the Opposition benches—has arrived at a similar meaning: politics is to be controlled and con­fined within the articles and schedules of the Indian Constitution. It is a perverse interpretation of politics, democracy and the Constitution. The truth is that politics in India predates its Constitution and it is a fallacy to think the former can be confined to the pages of the latter. It is this mistake that allows for histori­cal amnesia on the part of this class. India had a strong executive authority for more than two decades after Independence. The executive was weakened due to the emergence of regional politics and is now regaining its former pre-eminence as the same process goes into reverse gear. The contemporary revitalisation of Central authority has everything to do with political processes and nothing to do with constitutionalism.

But undoing the changes that have come about in the last 50-odd years is a difficult challenge. One Nation, One Election—a system India enjoyed for long after Independence—and restoring executive primacy in the appointment of judges are two well-known examples. The challenges are not due to legitimacy problems or even those of the necessary political will and legislative strength. They arise from the fact that democracy in India is hostage to too many special interests. These require firm handling. The coherence of India as a nation-state depends on the success of removing those encumbrances. The latest act in India’s story of constitutionalism by turning the clock back is still unfolding.

2025 New Year IssueConstituent AssemblyIndian ConstitutionIndian ParliamentIndian politicspolitical biography