India’s Constitutional Discourse:
Some Unanswered Questions

Ram Narayan Kumar & Indira Jaising

In February 2000, the Union government of India created a National Commission to review the working of its Constitution, which has seen seventy-six amendments in five decades of its life compared to twenty-one amendments of the American Constitution since 1787.

The Commission is headed by a former Chief Justice of India, M. N. Venkatachaliah, who until recently chaired the National Human Rights Commission. Besides the Chairman, the panel comprises 11 eminent public figures. It includes an erstwhile Speaker of the Lok Sabha, the Indian House of Commons, its former Secretary General, the last Chairman of the Law Commission, the Attorney General of India, a former Attorney General, the editor of an important daily newspaper, a retired Muslim bureaucrat, a former judge of the Supreme Court and a grand daughter of Mahatma Gandhi. The objective of this handsome panel, according to a member of the government, is to review the Constitution “in the light of the experience of the past 50 years” and to develop recommendations for changes that can meet the requirements of an “efficient, smooth and effective system of governance and socio-economic development of a modern India.” According to a report, the Commission’s members would constitute themselves into ten separate expert groups to prepare background papers on different areas. The subjects include the working of parliamentary democracy, electoral reforms, the Centre-States relations, enlargement of fundamental rights, effectuation of fundamental duties of citizens, the directive principles of State policy, and the socio-economic development. [1]

An imposing project by all appearance, the Commission has aroused controversies and fears about the political motives behind its formation, which the government has failed to address candidly. The project calls for a scrutiny. As we proceed to do so, we shall be guided by the warning that Walter Bagehot had sounded in his “The English Constitution”: “The nature of a Constitution, the action of an assembly, the play of parties, the unseen formation of a guiding opinion, are complex facts, difficult to know, and easy to mistake.” [2] So, we shall move cautiously, on the trail of facts and then pause to consider the directions they bespeak.

For more than a decade, the BJP has been advocating radical changes in India’s constitutional framework with Lal Krishna Advani, the Union Home Minister, leading the campaign for a switch-over to a presidential system of governance. According to him, the American type of Presidency would be more efficient in India’s political milieu than the Westminster model of parliamentary democracy, which the country has been following since it became independent in 1947. Advani points out that while free and fair elections are fundamental to democracy, the doctrine of “basic structure” of the Constitution does not bind India to the existing parliamentary scheme. To support this view, he cites the ratio of the Supreme Court’s judgment in Keshavanand Bharati. [3] Advani is vocal in demanding a fixed term of five years for Parliament to offset the legacy of rickety coalitions. He also wants that Parliament should admit a motion of no confidence against an existing government only if the mover, as in Germany, can demonstrate the legislative strength to provide an alternative. The 1991 election manifesto of his party also promised to abrogate Article 370 of the Constitution that confers limited autonomy to Jammu and Kashmir, and to modify Article 30, which permits India’s minority communities to run their own educational and cultural institutions. [4]

Two weeks before the Review Commission held its first formal meeting on March 23, 2000, the new chief of the Rashtriya Swayam Sewak Sangh, the mother organization of the BJP, expressed his views on the subject. He announced that the present Constitution of India should be entirely scraped as it derives from the Government of India Act, 1935, an instrument of British imperialism. The RSS leader said that the Indian Constitution should reflect the country’s own cultural and spiritual values. And, as all know, Advani is even more beholden to the RSS than to the BJP. [5]

The BJP’s proposals evoked limited but significant endorsement from a group of distinguished Indians. P. N. Bhagawati, former Chief Justice of India’s Supreme Court, said that he favored a presidential form of government with adequate safeguards. [6] Known for his yeoman’s work in establishing Public Interest Litigation as an effective instrument of justice within the higher judiciary, Bhagwati had also endorsed Indira Gandhi’s Emergency Regime between June 1975 and March 1977 when the fundamental rights of all citizens, including their right to life, had been abrogated. [7] C. Subramaniam, former Union Finance Minister and a member of the Constituent Assembly that had drafted the Constitution, said that a review of the Constitution was necessary to bestow more powers to the President’s office, and to bring about major reforms in the electoral system. [8] B. G. Deshmukh, former Cabinet Secretary and the Principal Secretary under Rajiv Gandhi’s government, sympathized with Advani’s concern for political stability. He also suggested that the discussion on electoral reforms should take into account the imperfections which the universal franchise imposed on India’s democratic process. He explained: “There is a theory that unless the electorate knows what are their responsibilities, they should not be given these rights.” [9] Nani Palkhivala, one of the most distinguished constitutional lawyer in the country and a former ambassador to the United States, expressed himself more expansively in favour of radical changes: India needs a strong man, someone like Kemal Ataturk, not adult franchise. The Westminster model intrinsically promotes political corruption. A Presidential system, patterned on a liberal, democratic model, would introduce greater competence and integrity within the government, and would put an end to political defections. However, if the time is not ripe for such a radical switch over, the government should at least introduce the necessary constitutional changes to improve the system and its performance inspite of our politicians. Electoral reforms are urgent. India should switch over to at least a partial proportional representation in Parliament. That would ensure stability, also a more genuine political representation. At least 20 % of the legislators should be elected indirectly from universities and other professional bodies to improve the quality of legislative work. The Constitution should be amended to permit the leader of the government to take Ministers on his Council from outside Parliament, as in Japan, without impairing the principle of collective responsibility to the legislature. The legislators, on nomination to the Council of Ministers, should resign from the houses to which they are elected, as in France, so that they do not waste their time and resources on politicking and pandering to local constituencies. [10]

The BJP’s proposals, camouflaged behind a general concern for political stability, have come under sharp criticism. Sonia Gandhi, the President of the Congress Party, attacks the review process as a “conspiracy against democracy” that aims at a totalitarian regime of “communal and fascist” character. [11] No doubt, Italian-born Sonia Gandhi has a personal reason to be harsh in her words. The BJP leaders and several members of the review Commission have advocated that the Constitution should be changed to disable persons of foreign birth from taking high offices in the country’s government.

The BJP leaders rightly point out that the Congress Party under Indira Gandhi had staged a ‘legal coup’ in June 1975 to suspend Parliament, to gag the press and supersede the judiciary. This experiment with dictatorship had lasted until March 1977. During this period, the Congress Party tried to wreck the democratic character of the Indian Constitution by getting the Parliament to pass the Thirty-ninth and the Forty-second Amendment Acts. These comprehensive amendments had abrogated the power of the judiciary to enforce fundamental rights, and had conferred on the Prime Minister, and incidentally on other high officials of the Indian State, blanket immunity from civil and criminal proceedings even on the charges of electoral malpractice. [12] The accusations are correct, but irrelevant. Indira Gandhi was defeated at the next parliamentary elections. The Forty-third Amendment Act, which followed, not only restored the fundamental rights and the power of the judiciary to enforce them, but also provided that the right to life and personal liberty, guaranteed by Article 21, cannot be destroyed even in a situation of Emergency. [13]

Sonia Gandhi cannot be made to account for the actions of her dead mother-in-law, who had acted from a personal motive to keep herself in power. The BJP has a larger political agenda, and some important members of the review Commission have already disclosed ideological tendencies that do not accord well with the democratic ideals. The Chairman of the Law Commission, a prominent member of the Review Commission, has recently recommended a comprehensive and permanent anti-terrorism law for India. Its provisions, like that of the erstwhile Terrorists and Disruptive Activities (Prevention) Act, 1987, diametrically conflict with the elemental principles of due process. The proposed legislation also creates a new category of ‘thought crimes’, punishable with the maximum sentence of life imprisonment. For example, ‘disruptive act’, in terms of the proposed legislation, also includes “assertion of any claim to determine whether a part of India will remain within the Union”. This means that all Kashmiris and their sympathizers, who advocate their right to self-determination, can be locked up for life. [14]

To justify the review exercise, the leaders of the BJP have relied on the statements of Babasaheb Ambedkar, the main drafter of the Constitution, which he made to argue for a relatively easy system of amending it. [15] Article 368 allows routine amendments through a majority vote in both the House of Parliament, with the two thirds of the members present and voting. Substantive changes require two-thirds majority, and ratification by a minimum number of States. Ambedkar had quoted Thomas Jefferson to say that there can be no finality or infallibility about the Constitution, which the future generations must remain free to amend. By denying them this privilege, we would condemn them to live within the doctrinal confines of the preceding generations. The Earth will then belong to the dead, not the living.

The point is clear and uncontestable although the proposition of a radical legislative transformation by the “will of the majority” has dangerous connotations in the heterogeneous environment of the Indian polity ridden with sectarian dissentions. The proposition reminds us of the Enabling Act of 23rd March 1933, passed by the German Reichstag with a 2/3rds majority, that marked the demise of the Weimar Republic and the advent of National Socialism. We must also point out that the excerpts from Ambedkar’s statements, of which the BJP’s leaders are making so much, do not disclose the real significance about the relatively easy system to amend the Constitution, which the Constituent Assembly adopted in November 1949. The drafting of the Indian Constitution had progressed in the middle of traumatic permutations in the geo-political realities of the Indian sub-continent. The members of the Constituent Assembly, formed under the Cabinet Mission Plan of May 1946, had not anticipated them. Under the original scheme, the Union’s jurisdiction was limited to Foreign Affairs, Defense and Communications, and its power to raise the necessary resources to manage them through taxation. The provinces were to be autonomous, with residuary powers of legislation, in all other areas, and with their own independent Constitutions. [16] The Mission Plan was a logical culmination to a long process of India’s constitutional reforms, which had begun in 1858. The history of India’s constitutional evolution, alternating between adaptations in the periods of social stasis and episodic deviations from the established norms, is well documented, and we shall not go into their details here. [17]

When India was ready for independence, the communal leaders seemed no longer prepared to share political power. The Muslim League insisted on some form of Pakistan. Nehru had been dreaming for his chance to reorganize India on socialist lines, contrary to Gandhi’s vision, under a strong central government long before Mountbatten appeared on the scene with the partition plan. Nehru acquiesced in the "surgical operation", which seemed to remove a fault-line in the Indian body politic - a built-in weakness that would have interfered with his plans for national reconstruction. As Morris-Jones points out: "It followed that if the Muslims remained as a political force in the State, it could only be at the cost of radical concessions to their distrust, and a weak central government would have been the first of the concessions". Now with the creation of Pakistan and the successful handling of the Princely States, Jawaharlal could hope that "the other potentially disintegrative forces... could be contained and ... and reduced to easily manageable proportions. The policy of containment and also that of national reconstruction demanded a strong center". [18]

As the partition of India seemed inevitable, the Sikh leaders of Punjab asked for a Khalistan, an independent Sikh State. The British advised the Sikhs to keep the unity of Punjab by coming to a settlement with the Muslim leaders over their rights and privileges in the State. But the Hindu leaders of the Congress persuaded them to insist that the districts in which they together with the Hindus formed majority should federate with India. The Congress leaders promised that they would not write a Constitution disagreeable to them. The Sikhs agreed. Without their support, Punjab would have gone to Pakistan with its borders meeting the outskirts of Delhi. [19]

However, Mountbatten’s Plan to partition India, which created the Sovereign State of Pakistan in August 1947, did not clarify its implications on the constitutional structure of the Indian federation. As Sarvepalli Gopal puts it: “The most striking feature of the negotiations for partition and the transfer of power in the summer of 1947 was the ambiguity on most of the vital issues.” [20]

When the draft of the Indian Constitution was ready for adoption on November 26, 1949, the representatives of the minority communities from the peripheral regions, like the Sikhs of Punjab, were angry that it had abolished their special privileges. There were to be no more separate electorates or reservations of seats in legislatures for them. They were also unhappy that the new Constitution transferred the powers that had previously been under the provincial jurisdiction to the Central government. Hukum Singh and Bhupinder Singh proclaimed: “The Sikhs do not accept this Constitution. The Sikhs reject this Constitution Act.” [21] The proclamation of rejection had little meaning in a situation that afforded them no alternative. However, the consequences of centralization on India’s political and economic developments should be the main issues for examination if the process of constitutional review now under way has to have genuine meaning. 

Regional circles of Indian politics, mainly in Jammu & Kashmir, Punjab, Tamil Nadu, West Bengal and other peripheral provinces of the Indian Union, have for a long time been fighting for greater autonomy and freedom from the Center’s dictates. The separatist unrest in Punjab and its brutal repression by the Indian State, as also the insurgencies in Kashmir and the northeastern provinces, have their origin in the demand for a radical devolution of political power, which the Indian Political Establishment has adamantly refused to consider.

The conflict in Punjab began to escalate in July 1982. In that year, the main Sikh political party called the Akali Dal launched a popular agitation for the implementation of its 1973 political resolution, adopted at Anandpur Sahib, which demands the transfer of all powers in the central jurisdiction except defense, foreign relations, communication and currency to the States. India’s military response to crush the agitation, marked by the June 1984 assault on the Golden Temple of Amritsar, triggered off a fiercely violent separatist movement, which took India’s security forces more than a decade to stamp out. Reports of pervasive human rights abuses, involving thousands of enforced disappearances, custodial torture and executions, which occurred in the process have not done credit to India’s claim of being the largest functional democracy in the world. [22]

The current phase of the conflict in Kashmir also started in 1984, when the Union of India interfered in the political affairs of the province to topple its elected government under Chief Minister Farooq Abdullah, exactly one month after the launching the military assault on the Sikhs temples in Punjab. The blatantly undemocratic intervention followed on the reports that Abdullah had been meddling in the affairs of Punjab with the intention to broker a rapprochement between the Union government and the Sikh leaders. [23] His dismissal set spark to the pent-up resentments of the Kashmiri people. [24] Their aspirations had never seemed to count in the belligerent maneuvers of the Indian and Pakistani governments to acquire and subjugate their territory. [25] The toppling of the elected Kashmiri government by the Indian Union in July 1984 had the avalanche effect to bring about an insurgency that remains irrepressible and which the United States officials have repeatedly described as “a flash point of the most dangerous conflict on the subcontinent”. [26]  

The Indian Political Establishment has not cared to seek a solution through dialogue even with those Kashmiri representatives who do not advocate secession, but demand substantial constitutional changes for provincial autonomy. The State Autonomy Committee in Kashmir, constituted by the ruling party in the State called the National Conference, tabled its report in the Legislative Assembly on 13 April, 1999.  Like the Anandpur Sahib Resolution of the Akali Dal, the State Autonomy Committee’s report insists that the Union government should not interfere in the affairs of the State except for the purposes of Defense, External Affairs and Communication. The Committee makes three other main demands: [1] Article 370, which grants special status to Kashmir, should become a permanent and a special provision in the Constitution.  [2] All Union laws that got introduced in the State after 1953 should be scrapped, and that [3] Article 356 which permits the Union government to politically meddle in the affairs of the State, should be abolished. [27]

These demands from Punjab and Kashmir not only reflect a way of thinking that is common to the regional movements in most peripheral parts of India, they also provide important and definite standards for the evaluation of the Constitution from the past and the future perspectives.

Let us consider this point from the position of Article 356, which almost all the regional movements want abolished. This Article allows the President of India to assume all the powers of the State governments through the office of the Governor, and to place their legislatures under the authority of Parliament. This he can do on the satisfaction that a State government is unable to function in accordance with the provisions of the Constitution. [28] That is the gist of Article 356. [29]  

In the original scheme of the Indian Constitution, the Governor’s office did not possess these powers to interfere in provincial affairs. Also, as the memorandum on the Principles of the Provincial Constitution prepared by the Advisor to the Constituent Assembly in May 1947 suggested, the Governor was to be elected by the Provincial Legislature. That would have made the office of Governor accountable to the State legislatures. However, at the final stages of constitutional drafting, the Assembly adopted amendments that made the Governors appointees of the President.  They also obtained the power, under Article 356, to take over provincial governments at the instance of the Union Cabinet, “…when the executive directions being given by the Union government to the State are not being complied with”. Although the directions to be conveyed through the Governors under Articles 256 and 257 can only concern the governmental policies and programs, the provision became a cover for political intervention. [30]

In 1951, Punjab became the first victim. The Chief Minister Bhargava did not favour Nehru’s policy to suppress the Sikh agitation for a linguistic reorganization of Punjab. He was forced to resign. President’s rule was proclaimed to keep the State Legislative Assembly in suspended animation, while the Union government groomed an alternative leader. President Rajinder Prasad was unhappy. He told Nehru that the situation in Punjab did not justify the use of Article 356 and the intervention set “a very bad and a very wrong precedent…” [31] Nehru was not impressed.

The next State to suffer the abuse was Kerala in 1959, when it came under the Communist Party’s government with EMS Namboodaripad as the Chief Minister. The pretext was the “deterioration of public order”, a deterioration engineered by the Union government. From 1967 to 1969, seven State governments run by the political parties inimical to the Congress government at the Center were dismissed. Between 1970 and 1974, nineteen State governments were so subverted. During Indira Gandhi’s experiment with dictatorship from June 1975 to March 1977, the State government of Tamil Nadu was toppled on the ground that it did not implement the Central directive to censure the press and to detain members of the opposition political parties. [32] In all, the Union has used Article 356 more than 120 times to interfere in the affairs of the States. [33]

The constitution ensures that the provincial governments remain puppets of the Union government even when Article 356 is not in operation. Articles 246[1] and 248, read with entries 97 and 254 of the Union List, give the Union the residuary powers of legislation. Under these Articles, Governors can withhold assent to Bills passed by the State Legislative Assemblies and forward them to the President, who under Articles 200 and 210 can deny assent without assigning any reasons. In the executive sphere, officers of the Indian Civil Service, under the Union, control all strategic posts in the provincial and the central administration.

For Jawaharlal Nehru, the centralization of power at Delhi was not an end in itself, but a means towards achieving India’s socialist reconstruction on the lines of the Soviet Union. For this objective, Nehru created the Planning Commission, an extra-constitutional body, destined to supersede the Finance Commission.

The Finance Commission was the product of an Expert Committee, which had been appointed by the Constituent Assembly in September 1947 to work out the economic aspects of Center-States relations. The Expert Committee, comprising well-known industrialists and financial specialists, took a historical view of the economic development in India. The Expert Committee’s report talked in terms of federalism, putting great emphasis on devolution of powers and compromises between the Centre and the States. Its report said: “Normally…, apart from war or large-scale internal disorder, the expenditure of the centre should be comparatively stable. The needs of the provinces are, in contrast, almost unlimited, particularly in relation to welfare services and general development. If these services, on which the improvement of human well-being and increase of the country’s productive capacity so much depend, are to be properly planned and executed, it is necessary to place at the disposal of provincial governments adequate resources of their own..." This report, tabled in the Constituent Assembly by Ambedkar in November 1948, became the basis for the creation of the Finance Commission. [34]

These recommendations did not agree with Nehru’s economic philosophy. To counter this vision of the Finance Commission, Nehru created the Planning Commission, which came into being in 1950 through a resolution adopted by the Union Cabinet. The functions of the Planning Commission were wide-ranging: Assessment of material, capital and human resources, formulation of a plan for their utilization, determination of priorities and allocation of resources, appraisal of progress etc. The Planning Commission became very powerful as an executive limb of the Union government, exercising total control over the developmental programs of the State governments. It began to decide what resources were to be transferred to the States. They were not even consulted regarding their developmental priorities.

In Part XII of the Constitution, the Center reserved for itself the power to impose the most remunerative and elastic of taxes by arguing that it needed finances to fulfil its responsibilities for defense, foreign relations, etc. Moribund resources, like land revenue, were left to the provinces. Inevitably, their tax base began to shrink rapidly. Of the combined aggregate resources during the period 1951-85, the Union government raised 71.5 per cent and the States only 28.5 per cent. The Union’s resources got squandered on defense, interest payments and discharging other non-productive liabilities. With all its talk about planning and the efficiency of the central control, nearly all public sector enterprises continuously incurred staggering losses.

Economic development in the States was further stunted by the Central monopoly of key industries although Entry 24 in the States’ List of the Constitution placed industry as a State Subject. Through the Industrial Policy Resolution of 1948, the Union assumed monopoly over key defense industries. A revision in the Industrial Policy Resolution of 1955 transferred the remaining important sectors including oil, electricity, machine tools, fertilizers and drugs from the States to the Centre. The Industries [Development and Regulation] Act 1951 took further 37 items away. This meant that the Union alone could grant licenses, regulate production and distribution of these items. The Act, amended ten times since then, places 171 items divided into 38 different categories, under the Central control. [35] By early 1970s, a State like Punjab had attained, through a phenomenal progress in agriculture, all the preconditions for a rapid industrialization. But these policies of the Central government forced it to remain industrially backward, directly contributing to the rise of political unrest among its educated unemployed who had been weaned away from the agricultural sector under diverse pressures. [36]

In the preface to his monumental work on the Indian Constitution, H. M. Seervai points out that the Constituent Assembly created a strong center under the conviction that it would put down the fissiparous tendencies in the provinces. If so, the conviction was misplaced. Once the basis of India’s unity in the division of powers and the communal safeguards was dissolved, a strong center by itself was inadequate to eliminate the civil strife, disunity and confusion that are rooted in the heterogeneous nature of the Indian society. [37] It would seem that this conclusion would stir receptive chords in those leaders of the Political Establishment who are undertaking the constitutional review presumably to permit India a better future. It would also seem that the modalities and the terms of the review, to be meaningful, would have to be comprehensive, and the body of experts to undertake such an exercise must itself possess a legitimate representative character.

The absurdity of India’s constitutional track, with its history of seventy-eight amendments, is encapsulated by the changes around the right to property. The Constituent Assembly recognized it as a fundamental right even as Nehru waxed eloquent on the impending socialist reforms. The contradiction paved the way to a long history of conflict between the parliament and the judiciary. Many constitutional amendments followed. However, the fundamental right to property was not upset even by an Indira Gandhi whose Thirty-ninth and the Fortieth Amendments destroyed the fundamental rights to life and liberty. Property was ultimately removed from the Chapter III of the Constitution in 1978, by the democratic coalition that replaced Indira Gandhi at the Centre. This was the Forty-fourth amendment, which became superfluous as India was already poised to embrace the open market.

Today, India’s economy seems to have moved irreversibly in the direction of globalization and open market even as the vast masses of people remain trapped in abysmal levels of poverty, illiteracy, disparities of regional development, the regime of controls, and the absence of accountability. It is widely acknowledged that globalization is a double-edged process. It has the potential to provide opportunities for the local democracy of citizenship, through decentralization of information and technology, and by creating local units of human association to link up with the planetary processes. But for this to happen, the arrangements of governance have to harmonize with the heterogeneous and autonomous character of the initiatives. The structures of authority have to give way, vertically and horizontally, to the sovereignty of political engagement that alone can make the community of experts conscious of the local needs. Decentralization of political power downwards, consolidation of international networks for cooperation in the fields of knowledge and diffusion of responsibility into the civil society are the preconditions for the process of globalization to be beneficial to all. International competitiveness that does not care for the strengthening of community infrastructure, local employment and environment will destroy what little meaning to democracy there remains in a country that has joined the race very late.

These are the warnings which economists like Kenneth Arrow, Galbraith and Amartya Sen have been sounding for decades. Jyoti Basu, the Marxist Chief Minister of West Bengal, made pointed references to these warning in his 30th Jawaharlal Nehru memorial lecture, which he delivered on 13 November 1998 at New Delhi, to make a passionate plea for the urgency of political decentralization in India. Jyoti Basu quoted from the statements of the President of the World Bank, the Managing Director of the International Monetary Fund, and the Human Development Report of 1997, published by the UN, to argue that without institutional reforms, greater equity and social justice, globalization would bring nothing but ruin for the vast masses of people in India. The Human Development Report of 1997 points out that the globalization is proceeding largely for the benefit of the dynamic and powerful countries. In international commerce, it has increased the subordination of the developing to the developed world. In the internal functioning of nation-states, globalization has led to shrinkage in state involvement in national life, exposing the poor to sudden shocks.  The Report points out that within the last one year, the recorded number of billionaires in the world has increased from 358 to 447, with the value of their combined assets exceeding the total incomes for the poorest 50 per cent of the world’s people. The report concludes: “These are obscenities of excesses in a world where 160 million children are malnourished, 840 million people live without secure sources of water, and 1.2 billion lack access to safe drinking water.” [38]

That is the crisis of the State, which India encounters at the beginning of the 21st century with the apparent inability of its institutions to harness the forces of social transformation to the advantage of all. It is truly a State crisis, because the spectacle of desperate inequality in evidence can directly be ascribed to the economic policies, which it has followed for five decades. Today, India can neither barricade itself against the forces of globalization, nor develop the institutional mechanisms to disperse the benefits of the process fairly to all. The institutions of the State and their leaders remain deeply entrenched in the economic activities, as subordinate managers of private corporations. The services they provide range from obtaining capital flows, arranging credits, terms of the trade, technology transfers, standing surety for speculative ventures, protecting the markets and the private companies down to controlling the food prices for the benefit of urban populations. The centralized structure of the State, its monomaniac obsession with the military and now nuclear development, and the attendant financial liabilities do not permit diversion of resources into education and community infrastructure. It has no resources to spare for water management, primary health, communications, electricity, in bringing about efficiency in the land holdings and improving the conditions of agricultural production and in diffusing industrial initiatives to generate local employment. The society’s upper crust continues to benefit from social security, mortgage interests, tax deductions, scholarships and grants. But the vast masses of people who live in the equilibrium of poverty have lost their entitlement of social welfare. Thus, a State constituted under a democratic process, financed through public taxation and administered by civil service bureaucracies becomes transformed as an occasion of sin through a selective abdication of its redistributive responsibilities. This transformation of the Indian State is not an inevitable corollary of globalization. It is the result of opening the floodgates to the forces of market while adamantly preserving the political status quo. 

The advocates of India’s Constitutional revision currently underway, however, do not wish the Commission to take up the matter of Centre-States relationship for a substantial evaluation. Nani Palkhivala explains this inhibition with reference to the divisive forces that may use the issue to challenge the unity and integrity of India.” [39] This fear of threat to India’s unity and integrity from the propositions of political decentralization would be difficult to comprehend unless we see it as embedded in a terretorial understanding of India, which is coterminous with the “sacred geography” of Hindu nationalism and is inseparable from its fantasies of heritage. The imagination of India as a sacred georgraphy has the corollary in the ideological requirement of dedication to the ‘Mother Land’, as an end in itself. To be within its space is to subordinate all identities and ideas to its overreaching claims of loyalty and allegiance. Within this scheme, identities and arguments that enable territorial transcendence are suspect. Extraterritorial associations of ethnicity, religion, political and cultural programmes are positively dangerous. Ashutosh Varshney and Sudhir Kakar have analyzed this concept of Indianness, from political and psycholoanalytical perspectives, to explain the fears and passions it excites. [40] From our own standpoint, the tendency to equate radical programs of decentralization with separatist agenda might seem irrational, but it has been so widespread and ensconced in the mainstream of nationalist political thinking that it never allowed the rival political schools even the chance to elucidate their propositions.

The references to the recent history of the divide on the Centre-States relations are important for the reason that the subject forms part of the agenda before the Review Commission. At the same time, the dominant groups involved in the process appear to have further hardened against the regional aspirations for decentralization and autonomy. Even in relation to Article 356, the BJP does not any more think from the perspective of the regional parties.

Thanks to the demolition of Babri Masjid at Ayodhya in December 1992 and communally divisive momentum it generated, the BJP was propelled to the centre-stage of pan-Indian politics and soon came to wield political power at the Union. [41] In the wake of the demolition, the Supreme Court upheld the dismissal of three state governments, led by the BJP, on the ground that by following “unsecular policies” they had deviated from the mandate of the Constitution. [42]   The BJP wants a review of this notion of secularism, which is founded on the principle that the State should remain strictly neutral and impartial in the matters of religion.

Clearly, the BJP’s call for a review in this case does not involve the issue of Union’s powers under Article 356. It seeks a constitutional definition of Hindutva, as an immanently eclectic system of thought that is tolerant towards all – “Sarwa Dharma Sambhawa” – , to the conclusion that it does not fall in the classification of religions in the sectarian order. This should not be so difficult a task to achieve with the Supreme Court having already ruled in the Ramjanambhumi Case that toleration of diversity is a Hindu characteristic. [43] Subsequently in the Prabhu’s Case, the Court went on to equate Hindutva  with Indianization, and to declare that “the words ‘Hinduism’ or ‘Hindutva’ are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices, unrelated to the culture and ethos of the people of India…” [44] In the latest Supreme Court’s judgment on the issue, the judge A. P. Ramaswamy explained: “The word ‘Dharma’ or ‘Hindu Dharma’ denotes upholding, supporting, nourishing …, the society, maintaining social order and general well being and progress of mankind.” [45] Justice Venkatachaliah, the Chairman of the Review Commission, had concurred with this view of Hindusim, expressed in the Ramjanambhoomi case through Justice Verma. [46]

This is the vision that seems to inspire the constitutional review underway. The vision anticipates Hindutva, analoguous with secularism and as the core principle of Indian nationalism. It suggests a presidential system of government, proportional representation, uniform civil code, prohibition on persons of foreign birth from occupying high offices, and the abolition of Article 370 for Jammu and Kashmir. A legal journalist, who has followed the working of the Supreme Court closely, points out that the main objective of the review exercise is to introduce the idea of a presidential system, which would allow the Union to handpick the judges for the higher judiciary, to have absolute control on the administration, and to have efficient command over the armed forces. [47]

Let there be no mistake: this is a radical vision, irreconcilable not only with the alternative framework of decentralization and democracy that we have discussed in this paper, but also with the blueprint of political relations, which the basic structure of the Indian Constitution postulates. The discrepancies in this process of India’s Constitutional review, informed by an evidently authoritarian vision that simultaneously appeals to the sanctity of “original intent”, can be understood when we examine it in the light of the proposition by Bruce Ackerman, a Sterling Professor of Law and Politics at Yale, that behind the faзade of gradualism and legalistic formality, constitutional changes belong to a manipulative process in which charismatic leaders fix the real issues behind the scenes. [48] The appeal to the sanctity of the Constitutional process, if genuine, requires a dialectical approach that aims at adaptations to permit the original enterprise of political community to survive and thrive. The process does not endorse experimentalism in a politically undisciplined environment. It is particularly inimical to institutional fantasies that move outside the nature of the established polity.

In terms of constitutional theory, this does not have to be a very conservative process. The interpretative approach can follow a twofold process of collating the current challenges with reference to the original composition, and in the reverse order by examining the original provisions from the standpoint of current requirements. This kind of cross-referencing achieves a compromise between positivistic and structuralist methods, and allows the legislature to forge new tools which are new and effective, and yet do not transgress the prescriptive limits imposed by the original scheme.  This approach, called “transcendent positivism” by William Harris, allows the legislature to analyse the Constitution for its relevance to the present problems, and to make the social arrangements that would be necessary to fulfill its explicit guarantees under the present circumstances. [49] The process of interpolation and extrapolation remains free to move between the considerations of instrumental requirements, which alone can fulfill the explicit guarantees, and the invention of new rights as their logical corollaries. However, the search for innovation does not take place outside the basic structure of the constitutional text. [50]

The review panel has inevitably provoked strong criticism from many quarters. The former Prime Minister Vishwanath Pratap Singh alleges a “hidden agenda” of the Hindu right wing. [51] The Communist Party of India says that it is a step towards the subversion of India’s parliamentary democracy. [52] The Congress under Sonia Gandhi accuses the government of trying to use the review panel to “communalize, polarize and saffronize the polity”, and calls for its boycott. [53] The President of India himself warns: “…We have to consider whether it is the Constitution that has failed us or whether it is we who have failed the Constitution.” [54]

The criticism of the revision proposals seems to have stricken home: it has had the effect of branding their initiators as “immature” and also, apparently, of making them feel somewhat less self-assured. With no immediate prospect of winning the argument, the BJP may bide its time and for now settle with the status quo. It is from this viewpoint that the constitution of the Review Commission has become an enigmatic exercise; also, somewhat of a farce in the act of backtracking from the radical proposals that initiated it.

Justice Venkatachaliah clarifies that the “basic features” of the Constitution, including the parliamentary system of democracy, are not amenable to the amending process. However, he justifies the review with the argument that whereas the philosophical foundation of the Constitution are sound, it does not provide sufficient watchdog mechanisms to oversee and enforce the constitutional promises into social realities. [55] The Home Minister, Advani, says that the review is a “periodic health check-up.” [56] C. Subramaniam points out that the preamble to the Constitution promised to bring social, political and economic justice to all. He poses an ardently relevant questions: Has it happened? If not, why? The veteran leader of Indian politics hopes that the Review Committee would identify the deficiencies in the Constitution that interfere against the fulfillment of its solemn pledges to the people. [57] Explaining the urgency of a Constitutional Review, former Secretary-General of Lok Sabha and a member of the Commission, Subhash C. Kashyap, says that in Bihar the Grand Trunk Road, the national highway, does not exist for long stretches of miles. How can a constitutional review help that? Kashyap clarifies: “People are what they are, and we cannot change them. If the people are bad, we cannot say that we will import people from England and America to work the system. The system has to be adjusted to meet the needs of society.” [58]

It is an interesting point, but does not explain how a constitutional review that excludes the substantial issues of the Centre-State relationship would answer the problems of regional development. It is also not clear how the proposed review of the Constitution would help to control political factionalism and corruption that account for the weaknesses of India’s parliamentary democracy. In fact, there already exist many unimplemented laws, and the government is at liberty to introduce fresh legislation in Parliament, or to amend the Representation of the People Act. Why review the Constitution? As Granville Austin, the renowned scholar of the Indian Constitution, points out the Constitutional law is not a science but applied politics. On its own a Constitution does not achieve anything. It has to be implemented and acted upon by citizens and governments. [59]

India’s Attorney General, also a member of the Review Commission, clarifies that the objective of the exercise is to enlarge the fundamental rights of citizens guaranteed by the Constitution. [60] The Chairman of the Commission says that the directive principles of the State Policy should become justiciable, and should influence the interpretation of the fundamental rights. He would also like to see incorporation of the right to compulsory elementary education, right to privacy and right to information in the fundamental rights chapter of the Constitution. [61]

It is a noble objective. However, the guarantees available within India’s Constitutional system, and the power of the higher judiciary to enforce them under Articles 32 and 226 of the Constitution, are very broad. In fact, the discrepancy between these noble professions and our brazen habit of ignoring them in practice has already seriously eroded the credibility of the Indian constitution, making it appear as a fig-leaf pasted over the arbitrariness of political practice and the naked exercise of power by the privileged. The resulting dichotomy, this yawning gap between the symbolism of constitutional language and the substance of life, is perhaps unprecedented in history, and seems to admit no immediate rational solution. So, before recommending yet another “extension and consolidation” of our fundamental rights, Justice Venkatachaliah and his panel colleagues should probe into this simple question, and give us their findings: how is it that India’s higher judiciary has so far failed to exercise the powers at its disposal to enforce the already available, and on paper quite satisfactory, constitutional guarantees? The review should also consider whether the decisional law developed by the Supreme Court permits consistent interpretation and enforcement of fundamental rights, and if not, why not. Lastly, it might ponder the introduction of a watchdog mechanism to ensure that lofty constitutional promises made to the citizens of this country are not, over and over again, sacrificed on the anvil of practice.

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