Indian Constitution

What Constitutes a Constitution?

“India requires a new constitution…I firmly believe that so many nations have rewritten their Constitutions whenever they felt it necessary. They have got new Constitutions. Now, there is a need in this country to pursue a new Constitution of India. Our slogan will be ‘Naya Soch, Nayi Disha, Naya Samvidhan (new thinking, new direction, and new Constitution).’” A mere week after India’s 72nd anniversary of adopting the Constitution, this proclamation by Telangana Chief Minister, K. Chandrashekhar Rao seems both provocative and confusing. KCR buttresses his claim by stating that “people’s expectations haven’t been met” in the past 75 years, which invalidates the utility of the present constitution. But how would a new constitution help in meeting those expectations? Is it even the point of a constitution to meet “people’s expectations?” Further, what is the relationship between a constitution and political outcomes?

The comments seem slightly more understandable in the context of KCR’s grievance against the centre, as it constantly overlooks and overrides the constitutional powers mandated to state governments. Yet, that grievance catapults to a desire for “newness” as a sort of panacea: a new constitution will solve everything that plagues the country, much like a project of remodelling Lutyens’ Delhi becomes the key to national rejuvenation. Replicating both the current dispensation’s logic of needlessly introducing novelty and its penchant for alliterative sloganeering, KCR seems to be speaking in the language of the very central government he seeks to oppose.

KCR’s call-to-arms elicited condemnation from across the political arena. Curiously, leading the charge is BJP MP from Telangana, Bandi Sanjay Kumar. In a series of tweets criticising the Chief Minister’s “abusive” attitude towards the Prime Minister and the constitution, Kumar ends with: “BJP abides by Dr. B.R Ambedkar’s Constitution and will never allow it to become vulnerable to the machinations of megalomaniacs like KCR.” One might concede sincerity to Kumar’s opposition to “megalomaniacs like KCR;” but leaving the Constitution vulnerable to the machinations of other kinds of megalomaniacs must certainly be fair game for Kumar.

What with the overt violations of legal procedure and convention, the authoritarian capture of otherwise autonomous institutions, like the Election Commission, military, and even the judiciary, along with a proliferation of hate-speech and atrocities against religious minorities and oppressed groups across the country over the past seven years. It is difficult to believe, then, that the BJP abides, in any measure, by “Dr. B.R Ambedkar’s Constitution,” as it unabashedly flouts the principles of liberty, equality, and fraternity installed within our Preamble. Instead, Kumar’s comments stem not from a commitment to constitutional morality, but a treatment of the constitution as a sacred relic rather than a readable document, whose spirit might founder some of the foundational assumptions behind Kumar’s own political ideology.

Both KCR and Kumar, then, seem to leave us with two models of thinking about the constitution: it is either treated as a means to an end—the achievement of particular political and economic outcomes that the current document has failed to ensure—or defended as an object of almost religious reverence, ironically failing to take its actual text seriously. Either a tool, or a sacrament. But are there other ways of thinking about the constitution, other forms of envisioning our relationship to it as citizens? To hark back to an earlier set of questions, what is the purpose of a constitution? Can we ‘defend’ the constitution without worshipping it or resisting suggestions of change?

Without necessarily answering these questions in any direct manner, I’d like to turn attention to a phrase that I just used: constitutional morality. This seemingly self-explanatory term—a moral commitment to the constitution, or the morality enshrined within it—appears as an object of critical inquiry in various discourses of constitutionality. The most relevant instance of the phrase comes from Dr. B.R. Ambedkar’s citation of the classicist George Grote, in his speech ‘The Draft Constitution,’ delivered on 4 November 1948: “By constitutional morality, Grote meant… a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms…”

It is difficult to do justice to the entire complex of ideas that this abbreviated sentence presents, but what is particularly interesting is the repeated use of the term ‘form.’ For Grote, reverence is enacted not simply to the constitution but its forms. However bitterly opposed different political factions may be, they must share a belief in the sacredness of the form of the constitution. This belief becomes constitutional morality itself.

It is the form of the constitution, then, and not just the sum of laws contained within it—it’s content—that should gain prominence in our evaluation of it. The form of the constitution doesn’t merely refer to the framing of a legal document; it bleeds into a socio-political and intellectual space, and the conditions on which the functioning of that space is premised. Thus, we might disagree about the validity of certain laws—the current debates on marital rape, or the infamous section-377, repealed shamefully recently, bear testament to the existence of reprehensible legal statutes—or be disillusioned by the dissonance between the vision of the constitution and the lack of its actualisation. But to truly respect the constitution is not to defer to a specific set of rules or axioms; it is to consider seriously the process of encountering difference, listening to dissenting voices, and respecting the dignity of each individual that undergirds its very composition: what forms a constitution.
Yet, as we collectively acquiesce to a project of annihilating difference, where democracy is preserved merely as a catalyst for demagoguery, we are moving further away from this vision of constitutional morality, a vision that Pratap Bhanu Mehta expands upon in his lecture titled ‘What is constitutional morality?’: “In the face of difference, the only point of unanimity that one can seek is over an appropriately designed adjudicative process…What the parties have to agree to, as Ambedkar recognizes over and over, is an allegiance to a constitutional form, not an allegiance to a particular substance.” It is precisely this ‘adjudicative process’ whose downfall we witness today in the relentless erosion of institutional authority. Far more dangerous, however, is the ruling dispensation’s singular allegiance to its own ideological substance that threatens to deform the constitution to its very core.

Adit Shankar is a first-year masters student of English at Ashoka University. His writing has previously appeared in Scroll, and he is interested in the politics and literature of South Asia.

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The Frailty of Quasi-Federalism in India

The Rajya Sabha reverberated with staunch opposition to the approval of the Government of National Capital Territory of Delhi (Amendment) Bill, 2021 (GNCTD Bill) on 24 March, 2021 . The Bill contains amendments that would bolster the powers of the Lieutenant Governor (LG) of Delhi and further limit the administrative powers of Arvind Kejriwal’s AAP government.

In stark contrast to the earlier-vested powers of the elected government to take independent decisions on most administrative matters, the bill mandates LG’s approval prior to every executive action. CM Arvind Kejriwal called it a “sad day for democracy,” while Congress MP Abhishek Manu Singhvi called the bill “the most pernicious and the most unconstitutional bill the Rajya Sabha has ever received.” Having received Presidential assent amidst opposition walkouts in the Rajya Sabha, it has yet again resurrected debates on the current government’s commitment to federalism in India. This is not the first time that the government has come under scrutiny for passing heavily opposed legislations jeopardizing constitutional federalism. The recent GNCTD Bill, along with certain other highly controversial moves like the stance on “one nation one election”, the abrogation of Article 370, the CAA & NRC and the passage of the farm bills, all in the face of incessant criticism and opposition within and outside the Parliament, has brought the BJP under question. So, how do these contentious bills get passed despite such strong opposition? One could consider the role of India’s “quasi-federal” structure and its compatibility with the Bharatiya Janata Party’s longstanding agenda of attaining a unitary state with an overly dominant Centre. The larger debate that these legislations highlight is the inadequate checks that India’s quasi-federal structure presents to a government with a parliamentary majority.

“Federalism” refers to the constitutionally allocated distribution of powers between two or more levels of government; one at the national level, other at the provincial, state or local levels. The principal feature of federalism is that the various levels of governments operate within their own constitutionally-defined jurisdictions with substantial independence from each other. A key tenet of the federal concept is the voluntary compact between several independent states that agree to become a part of a nation and are required to submit an integral part of their power to the Centre.

However, in most federal countries, the difference in power between the central and state governments is not as substantial as it is in the case of India. The herculean challenges faced by postcolonial India in terms of cultural, religious, and ethnic diversity have contributed extensive powers to the Centre. The disunity and secessionist tendencies that postcolonial India witnessed in the form of linguistic nationalism in the South, accession of the Princely States, the Kashmir conflict, and regional rivalry with Pakistan, among others, led the members of the Constituent Assembly to advocate for a strong Union government. This was deemed necessary to ensure political stability for India’s survival as a unified nation-state amidst enormous cultural heterogeneity and national security threats.

Unlike other federal countries such as the US, the Parliament in India has the power to admit new states, create new states, alter boundaries and their names, in addition to establishing unity between states or dividing them. Further, there are various provisions in the Constitution that allow the Centre to override the powers of the states; the power to make laws within fields that have not been specified within the Constitution lies solely with the Centre. Additionally, on fiscal matters, states have limited capabilities and are quite heavily dependent on the Centre. Thus, the Constitution of India was drafted with strong centralizing tendencies that confer maximum powers to the central government and is thus referred to as “quasi-federal.”

BJP leaders have been pushing for the idea of “one nation one election” in various public platforms ever since the agenda reserved its space in the party’s 2014 election manifesto. In fact, as recently as in December 2020, BJP conducted roughly 25 webinars propagating the idea. . This agenda will further affect the limited autonomy of regional parties that contest to form state governments across India. This centralized control of state legislatures and state governments adds to the longstanding goals of the BJP to attain a unitary state. Further, advancing the abrogation of Article 370 that granted a special status to the state of Jammu & Kashmir bypassed the citizens of the state. Moreover, on 12^th December 2019, the Parliament passed the heavily contentious “Citizenship Amendment Act,” which is widely considered an “anti-muslim” law. And the farm bills of 2020, which continue to see protests, received Presidential assent to become a law in September 2020.

Despite opposition parties protesting against these anti-federal legislations, the BJP has been able to enforce them majorly due to their absolute majority in the Lok Sabha and a substantial standing in the Rajya Sabha. The BJP has 305 legislators in the Lok Sabha, which is more than enough to pass any bill without the support of allies. In the Rajya Sabha, the BJP has 82 members (38 short of the simple majority of 120), but it’s allies take the tally to 107. Additionally, various regional parties such as the BJD, Shiv Sena, the YSRCP, the TRS and the NPF (total of 19 members) registering their votes in BJP’s favour, gives them the required number – above 120.

Complementing such a majority, the powers vested in the Centre under Article 256, 365 and 356 allow the BJP to enforce any law that would strengthen its hold over the states. Article 256 says that all states are obligated to enact laws passed by the Parliament, whereas Article 365 states that if the States do not comply, then the President may hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the Constitution. Resultantly, Article 356 authorizes the President to remove State Governments and dissolve state assemblies if they cannot run in accordance with the Constitution.

As political scientist Philip Mahwood argues, culturally diverse and developing countries like India require federalism not just for administrative requirements, but for the very survival of the nation. However, the centralized structure of federalism adopted by India to tackle post-independence challenges appears to be compatible with the unitary agenda of the Central government. Additionally, the BJP’s majority forming the Centre and their recurrent tendencies to bypass state governments and its citizens pose an extreme danger to federalism, which is one of the basic features of the Constitution and must be protected at all costs.

Picture Credits: Ipleaders

Saaransh Mishra is a graduate of Political Science and International Affairs. He is deeply fascinated by geopolitics, human rights, the media and wishes to pursue a career in the confluence of these fields. In his spare time, he watches, plays, discusses sports and loves listening to Indian classical fusion music.