In the past few years, there has been a growing body of Indian public law scholarship that aims to analyse recent and contemporary events through the lens of institutional design choices in order to understand how the constitutional division of powers impacts the operation of the structural and normative ideas envisaged in the Indian Constitution. These studies complement the traditional analyses of the Indian Constitution, which remain largely focused on its historical, normative, political or doctrinal claims. Gautam Bhatia’s The Indian Constitution: A Conversation with Power is a welcome and timely addition to this growing literature, as it not only pushes us to shift our analysis of contemporary India from the political and doctrinal to the constitutional, but also sets the tone for the possible interpretive and constitutional changes that courts and future parliamentarians can devise to bring institutional practices closer to the normative ideals underlying Indian constitutional thought.
The central argument of the book is that, owing to the textual choices and appended silences, the Indian Constitution remains a “terrain of contestation between different visions of power”, though with a tilt in favour of centralisation. Over the course of nearly eight decades of Indian constitutional history, such “seeds of this centralizing drift … have been watered down and fertilized” by the Supreme Court of India (“SCI”) by way of a set of what the author calls “inflection-point judgments” (p. xi). To substantiate this claim, the author discusses six axes around which power is distributed under the Indian Constitution: federalism (division of power between the union and the states); parliamentarianism (division of power between the executive and the Parliament); pluralism (debate between homogeneity and pluralism); institutions (the standing and independence of the fourth-branch “guarantor” institutions vis-à-vis the elected institutions); rights (the interpretation and operation of fundamental rights from a people-centric versus state-centric approach); and the people (the role of the people in constitutional governance by way of direct versus representative mechanisms). In all these domains, the notes of centralisation have prevailed. “There has been a gradual drift towards the entrenching of its first set of characteristics: unitary, concentrated, representative, electoral, homogenous, and Statist power, at the cost of federal, distributed, direct, guarantor, plural, and individual power”, notes Bhatia (p. xxi). While the author makes this important claim, accompanied by substantial supporting evidence, there remain some methodological and analytical shortcomings in his approach and arguments. In the paragraphs to follow, I flag these shortcomings as considerations that readers must keep in account while engaging with his analysis of the Indian Constitution.
First, the idea of “centralisation of power” seems inappropriate to explain the malaise highlighted by this work. For instance, when the author discusses the partisan functioning of the Speaker of the Lower House of Parliament, the absence of opposition rights in legislative bodies, or the excessive control of the party leadership on the voices of their legislators owing to the stringent anti-defection law (ch. 2), the theme of centralisation fails to correctly identify the larger issue underlying these undemocratic actions. In fact, the factum of disproportionate control of party leaders over their members ails most of the Indian political parties – national or regional, and the absence of opposition rights and partisan functioning by constitutional and state officers affects governance at all levels – from the central and state, to the lowest level of administration. Other chapters suffer from this issue as well. For instance, Chapter 4 discusses how the independence of the fourth-branch institutions is not sufficiently entrenched in the constitution and Chapter 5 presents a series of SCI’s decisions that have supported a state-centric reading of the fundamental rights guaranteed under Part III of the constitution, which effectively “[preserves] the coercive power of the state” (p. 145) and creates a “proverbial constitutional blackhole” (p. 158). These design and interpretative concerns have no correlation with the aspect of centralisation. Centralisation, as the principal analytical lens, could be helpful to understand only the questions connected to federalism and asymmetric federalism discussed in Chapters 1 and 3.
Rather than centralisation, the correct lens to think about these issues, I argue, is the idea of the consolidation of power. The author himself indirectly recognises this aspect when he uses phrases like “executive-trusting trajectory” (p. 141) and “coercive imbalance of power” (p. 165) at places in the book to define the characteristics of Indian constitutional design. Once the point of enquiry is shifted from centralisation to consolidation, it helps one clearly understand that the reason underlying many of the undemocratic excesses in India is not the expanding union Government but the disproportionately powerful organisations – be it the executive or the political parties. With this, the normative and functional responses to the malaise also change significantly.
One possible reason for this incorrect identification of the fundamental problem could be the inherent bias in Indian public law scholarship to unduly focus its study on the union level of governance, across all institutions. Therefore, while scores of works have been written analysing the Indian Parliament, the union executive, the SCI and central fourth-branch institutions like the Election Commission of India, works on their counterparts at the state and district levels remain on the margin, if not entirely absent.
Second, in the quest for covering several constitutionally allowed and judiciary-supported instances of consolidation of power, the author’s arguments suffer from a lack of analytical depth in a few places in the book. For instance, in Chapters 1 and 3, the author takes consolidation per se as an issue, without providing adequate context-specific normative claims for why a centre-heavy reading of the constitution goes against the essence of India’s democratic republicanism. While these aspects may seem self-explanatory when it comes to a state-centric reading of fundamental rights or the absence of constitutionally entrenched independence of fourth-branch institutions, adequate justifications, enriched from the specific socio-political realities of India, are wanting when it comes to questions about federalism. Bereft of that, readers remain unconvinced about why constitutional silences must be read in favour of federalism when the constitution tilts outright towards centralisation.
This is not true, however, for all the chapters. To the author’s credit, the book contains a few chapters, especially Chapters 4 and 6 – about the fourth-branch institutions and the role of the people, respectively – which provide alternative conceptual readings of the existing constitutional arrangements that will make their operation consistent with democratic values. For instance, Chapter 4 discusses the idea of constitutional statutes as a way to protect the independence and integrity of fourth-branch guarantor institutions that are not expressly provided for in the constitution. In this exercise, the author engages with a host of literature on comparative constitutional studies and jurisprudence, particularly drawing from Bolivia, Brazil, Kenya and South Africa, in a commendable effort towards South–South borrowing.
However, this exercise, at times, suffers from superficiality. For instance, when the author explores the possibilities of how people could be better involved in the constitution-making, lawmaking and administrative decision-making stages in Chapter 6, there is no engagement with the experiences of countries like Chile, which have presented substantial evidence of the dangers of singular thinking about the presumed benefits of wide popular participation. It also fails to recognise that, rather than the mere presence of constitutional provisions and judicial affirmations, the success of participation depends on the nuances with which participation exercises are structured and the manner in which they are internalised by the executive and the bureaucracy, with adequate channels of accountability.
Third, in locating and discussing the “inflection-point judgments” of the SCI that have supported the consolidation of power in the executive, the author fails to provide adequate and academically sound justifications for choosing one particular set of judgments while overlooking others from the same court, which hints at possible selection bias. For instance, the author nowhere discusses – except for a single in-line mention of one judgment in Chapter 4 – a series of judgments of the SCI that envisioned and proactively crystallised the collegium system for the appointment of judges to the SCI and the high courts aimed at securing the independence of the judiciary from the executive; the decision of the SCI in the famous Kesavananda Bharti v State of Kerala (1973) 4 SCC 225 that established the basic structure doctrine and limited the powers of the legislature to dismember the essence of the Indian Constitution; recent decisions on the SCI that established its power to review the Speaker’s wrongful certification of a bill as a money bill; a series of decisions of the SCI from the late twentieth century that effectively debarred the union executive from misusing the emergency provisions to unlawfully remove the elected state Government ruled by opposition parties; and a series of decisions that substantiated the right to information of the citizens by mandating the disclosure of financial holdings and criminal antecedents of candidates fighting elections, including a recent decision quashing the electoral bonds scheme that introduced a non-transparent mechanism for political donations. One could add numerous other decisions of the SCI to this list that have effectively countered the consolidation of power in the executive and, to use the author’s phrase, upheld the values of “federal, distributed, direct, guarantor, plural, and individual power” over the contrary.
In fact, the author himself records a number of such decisions across multiple chapters of the book. For instance, the author takes note of the decision of the SCI in NCT of Delhi v Union of India (2018) 8 SCC 501 in Chapter 1, which “bolstered the federal structure” (p. 25); the decision in Krishna Kumar Singh v State of Bihar (2017) 3 SCC 1, which established judicial review of presidential ordinances (ch. 2); and the decisions in Vineet Narain v Union of India (1998) 1 SCC 226 and Anoop Baranwal v Union of India (2023) 6 SCC 1, which were noteworthy expositions towards securing the independence and integrity of the fourth-branch institutions.
These decisions show, with much certainty, that the interpretative approach adopted by the SCI has not followed a consistent trajectory favouring the consolidation of power in the executive, something that the author does not acknowledge outright in the book. At the same time, this inconsistency naturally raises another pertinent question: what are the reasons for such inconsistencies in the SCI’s approach? Answering this question would include the assessment of individual judges, their political understanding of the Indian constitutional vision, the prevailing socio-political context of the time and other such important factors. As the author also acknowledges, “in some cases … constitutional interpretation follows politics” (p. 232, emphasis added). The book does not engage with these questions at all, which, resultantly, renders the author’s arguments incomplete and leaves the readers with more questions than answers.
Lastly, the author’s methodology suggests a profound fascination with and belief in the ability of the text and structure to control the conduct of constitutional and state functionaries. As the author emphasises at the end of the book, “constitutional design is not a neutral field, within which people act as they may. Human action is shaped by constitutional structure and by the architecture of constitutional institutions” (p. 238). While acknowledging the author’s optimism about the capabilities of constitutional design, one must not turn a blind eye to the abundant evidence in the existing comparative constitutional literature that shows how constitutional design tends to be of limited use and can be rendered nugatory by the dominant political forces if their ideology contradicts the textual principles.
The text can, therefore, only do so much and one must answer deeper questions about the dominant narratives about democracy and the appropriate use of state power to satisfactorily unpack the reasons for a consistent consolidation of power during the past eight decades of India’s constitutional history. The author is right in suggesting that a part of the blame also lies with the widely prevailing constitutional common sense (one may otherwise call it constitutional culture) that favours consolidation. It is this variety of constitutional culture that pushes the judiciary, at times, to tolerate, with impunity, and perpetuate political practices that subvert fair and democratic ideas in favour of the consolidation of power.
However, the fundamental question – how this culture emerged and came to dominate the popular consciousness – remains unanswered, quite understandably given the humongous nature of this enquiry. Nevertheless, it is an important question to answer, as many of the political practices that further solidify the consolidation of power retain wide social legitimacy in Indian society. The factum of Indira Gandhi’s re-election after she imposed nationwide emergency and suspended democracy in India, and the consistent performance of Narendra Modi, are enough evidence to show that undemocratic consolidation of power does not necessarily result in electoral losses. People either support such consolidating tendencies or remain indifferent to them while exercising their franchise.
Therefore, the primary battle facing Indian society at this point is the identification of the reasons underlying the existing constitutional common sense and then attempting a redefinition of the normative ideal that is rich with the ideas and practices of democracy and making it the dominant social narrative. It is about redefining the understanding and purposes of state power that the constitutional institutions, including the judiciary and the executive, consider just and thus, perpetuate without outside force. These battles cannot be won merely by emphasising the question of text and design. The text can only have value when serving a narrative that is widely considered appropriate. Therefore, while the book is a great contribution in documenting the symptoms of the problems ailing the Indian constitutional practice, future works must engage with these deeper questions that diagnose their underlying reasons.
In this ambitious attempt to cover six axes along which the Indian Constitution divides state power, the author’s initiative, while not entirely novel, is commendable. It offers an engaging commentary for the students of law, comparative constitutional law thinkers and citizens to understand the nuances, gaps and inadequacies of the Indian Constitution. The book must also be given due attention by the judges and politicians as they contemplate the future trajectory of the Indian Constitution. I congratulate the author once again and hope that the book receives a wide readership and inspires deeper engagement with the Indian Constitution.
