Penn Calendar Penn A-Z School of Arts and Sciences University of Pennsylvania

The Indian Constitution: Conversations with Power

in partnership with the South Asia Center, the Center for Asian Law, and South Asian Law Students Association (SALSA)

Gautam Bhatia
Author & Lawyer, Supreme Court of India
Thursday, September 15, 2022 - 12:00
A Virtual CASI Seminar via Zoom — 12 noon EDT | 9:30pm IST

(English captions & Hindi subtitles available)

About the Seminar:
This seminar explores how the Indian Constitution is a terrain of contestation between different—and often conflicting—visions of power. As a document that creates, shapes, and constrains power, the Constitution is not exhausted by its text; it is in ambiguities and silences, where the work of interpretation takes place, that this contest plays out. The talk highlights some of these axes of power and then take one specific example—federalism—to argue that over time, the Constitution has been subjected to a "centralizing drift," i.e., interpretation (especially by the Supreme Court) that shifts power to the central executive, at the expense of other power holders. This "centralizing drift" was not inevitable but is the product of active judicial and interpretive choices and, therefore, can be potentially reversed in the future.

About the Speaker:
Gautam Bhatia is a Delhi-based author and lawyer at the Supreme Court of India. He finished his LLB (the equivalent of JD) at the National Law School of India University and then read for BCL and M.Phil. in Law at Oxford University as a Rhodes Scholar. He also holds an LLM from Yale Law School. He is a well-known commentator on the Indian Constitution and its many lives in India today. He is the author of Offend, Shock, Or Disturb: Free Speech Under the Indian Constitution (Oxford, 2016) and The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins, 2019). He is also an accomplished fiction writer and author of the critically acclaimed The Wall (HarperCollins, 2020).


Sarath Pillai:

Hello, and welcome everyone to CASI’s Seminar series. My name is Sarath Pillai. I'm one of the postdoctoral fellows, and one of the organizers of this seminar, along with Amrita Kurian and Tariq Thachil.

If you are new to CASI or if this is the first time you're attending a seminar series, I wanted to say that this is a part of our weekly seminar series, where we bring people working on contemporary India from different disciplinary and from different geographical locations.

So, next week, we have a talk by Elizabeth Chatterjee, who is an environmental historian at the University of Chicago, where she'll be speaking about the history of energy in India. And that's going to be a hybrid event, which means that we will also have it in person at CASI. So if you're in Philadelphia, please come and attend that talk.

But today, we are extremely pleased to have a very special guest, who is Gautam Bhatia, who has kindly agreed to speak at our seminar series. Gautam's talk today is sponsored by three other units on campus: they are the South Asia Center, Center for Asian Law, and South Asian Law Students Association. We are extremely grateful to all of them. Gautam, perhaps, needs no introduction because he is a very well-known commentator on Indian Constitution and all matters relating to Indian Constitution. He's an author and lawyer at the Supreme Court of India. And currently, he's a postdoctoral fellow at the SCRIPTS Cluster for Excellence in Berlin, and he's actually speaking to us from Berlin right now.

He is the author of two important books on Indian Constitution. The first one is Offend, Shock, Or Disturb: Free Speech Under the Indian Constitution, which came out with Oxford in 2016. And the more recent one, which is The Transformative Constitution: A Radical Biography in Nine Acts, with HarperCollins in 2019, which I assume many of you will have heard about and read. He's also an accomplished fiction writer and the author of the critically-acclaimed The Wall, which came out with HarperCollins in 2020.

Today, Gautam is going be speaking to us about a very important topic in contemporary India, which is the relationship between federalism and what we see as the increase in centralizing tendencies. This is a process that, perhaps, happens in many parts of the world. Gautam is a scholar of constitutional law not only in India but also he writes about global constitutionalism in general, as well. Today's talk is titled: The Indian Constitution: Conversations with Power.

Before I hand it over to Gautam, I just wanted to say two words about the Zoom etiquette. He'll speak for about 30 to 35 minutes, after which there'll be Q&A. While he speaks, please stay muted, with no interruption so that the recording process is also not interrupted. Once the Q&A starts, if you wish to ask question, please type your question as a message to me, Sarath Pillai, and I will call on you to ask the question and then you come up online and ask the question. And of course, try and keep your questions brief and quick so that we can get to as many questions as possible in the Q&A.

Okay. Over to you, Gautam.

Gautam Bhatia:

Thank you. Thank you for inviting me. It's a great pleasure to be here. I'll get straight into the conversation. What I'm presenting today is a part of a larger work that I'm presently engaged in on the Indian Constitution, something of what I believe is a new approach towards understanding the Constitution, and I'll explain what I mean by that. And federalism is one illustration of that, as will become clear. So, I'll begin with an observation that the comparative constitutional scholar Gunter Frankenberg makes, which is that, we should always think about a constitution as narrative, or as having an interesting story to tell. A survey of scholarship of historical sources and of judgments indicates that there are many stories told about the Indian Constitution, but they can be grouped broadly into three archetypes.

The first archetype understands the Constitution to be a continuation of colonial governance: forms and structures marked by extensive borrowing from pre-Independence, semi-constitutional charters, such as the 1935 Government of India Act, and the retention of characteristically colonial instruments of State power, such as retention without trial ruled by decree, and so on. This understanding of the Constitution was articulated within the Constituent Assembly at the time of the founding, formed the basis of early Supreme Court judgements, interpreting constitutional provisions, and continues to be a focus of scholarly critique.

The second archetype, which we can broadly call progressive or transformative constitutionalism, takes issue with the argument from colonial continuity. The [inaudible 00:05:31] constitutionalism is conceptual into market [inaudible 00:05:31] break in the past, and usher in a new set of framework values to govern the Indian polity. There are different accounts of transformative constitutionalism in the Indian context. Some anchor to India as public interest litigation to the students. Others, a little more skeptical, such as mine, argue that it's more or less a contrapuntal cannon within the Indian constitutional domain; it's not yet dominant. That's the second archetype.

The third archetype is an even more skeptical one that denies that the Constitution has any story to tell at all, pointing to the plurality of voices in the Constituent Assembly, often in conclusive debates, and the final, inordinately-lengthy text. This account holds that the Constitution was a result of political compromise, and is better understood as a ragbag of disparate provisions cobbled together by happenstance, instead of exhibiting any unified political or social vision. These are not disjunctive; they are overlaps that the Directive Principles chapter, in fact, is a classic example of a part of the Indian Constitution that both, at certain points, has a coherent, normative strain, such as multiple labor rights provisions, but also seems, at certain times, to be completely incoherent: labor rights, cow slaughter, all rub shoulders, and you wonder what really is happening here. So, it's worth remembering that when we think of the Constitution as narrative, it's a document that may not just tell one story but several. And that is really, I think, an important point.

One issue that I have identified with respect to all these accounts and indeed in studies of constitutional identity in the Indian context is a focus to the exclusion of all else upon the Fundamental Rights chapter, chapter on Fundamental Rights: rights against the State, rights against private parties, what we call Part III of the Constitution.

So, if you are arguing for the Constitution's inherently colonial or conservative character, you will point to detention provisions, restrictions on rights, and so on. If you're arguing for a transformative interpretation, you will argue for the non-discrimination provisions, the progressive interpretation of certain provisions, and so on. But the terrain of argument is dominated by debates over the Fundamental Rights chapter, and what it means, and what it signifies.

The problem is that if you look at the Constitution, the Fundamental Rights chapter constitutes about 10% of the total text of the Constitution. And in debates, it often seems, apart from a few provisions, like the governor, I think, which, of course, recently has become very important, given the tussle between the Centre and the states, the 90% of the Constitution that's not the Fundamental Rights chapter may be interesting and important in its own right, but has no real bearing on the Constitution's progressive or transformative character. This is a problem that is present across constitutional law scholarship and teaching in India. If you look at the way curricula are structured in Indian law schools, constitutional law is classically taught through three courses: federalism, Fundamental Rights, and the separation of bias. And there is a certain kind of power in taxonomy, right? So, dividing up constitutional law in this fashion already presumes pre-existing clean-cut lines between these three parts of the Constitution.

If you look at the table of contents in classic texts, such as, say, The Oxford Handbook of the Indian Constitution, you see similar divisions between federalism rights, separation of powers, all of which are placed within distinctive subsections. Standalone volumes on the various aspects of the Indian Constitution replicate this division. They tend to focus either on structural issues, like federalism, or on substantive rights issues, such as discrimination, equality, religion, free speech, and so on. What this unwittingly does, in my view, is that it creates a kind of constitutional common sense that views these different thematic parts as self-contained and separated from one another within the constitutional text. It's here the problems begin.

In this context, the work of the Latin American scholar Roberto Gargarella is particularly important, because as he points out in his ministerial study of two centuries of Latin American constitutionalism, all constitutions contain two parts: dogmatic one that includes a declaration of rights, and an organic one that divides and organizes power. Gargarella notes that the two parts are linked to one another and can even come into tension. For example, a system of concentrated power begins to conflict with the social demands generated in the name of constitutional rights, which ends up implying that one part of the constitution begins to work against the other. And of course, what he focuses on is a history of authoritarian presidentialism in Latin America that is in tension with an expanding charter of rights that has defined Latin American constitutionalism for the last 100 years.

So, starting with the Mexican constitution of 1917, you have these successive constitutions, products of revolution, of social movements, that put in more and more rights, but leave, what he calls, the engine room of the constitution, which is the structure of power: how does the Constitution create power, how does it sanction its exercise, and how does it limit power. That bit is left untouched. And then that ensures that your rights provisions remain broadly unimplemented, because it's very difficult to implement them if you continue to waste power in a single authoritarian source. So, that distinction, then, becomes significant.

And so, on Gargarella's terms, the question that we should be asking when we think of the Indian Constitution and its transformative or conservative character, is: Whether the substantive alteration of Part III over the years, the expansion of rights by the court, and so on, has it been accompanied by an equal attention to the manner in which the Indian Constitution organizes power? And so an equal focus, an equal attention to the linkages between the organic and the dogmatic part of the Constitution?

I think that that is a question that is yet to be asked, and that's a question asked and attempt to address to an extent in the book that I'm working on, whose precis I'm giving to you today.

So, when you look at the founding of the Constitution, and you go back to the beginnings, Uday Mehta makes an important point that: Whereas the US context, US constitutionalism stemmed from a deep distrust of power; in the Indian context, there was a stark distinction. Problems of mass poverty and many other social ills meant that the Constitution was understood as an instrument for the exercise, channeling, and shaping of public power in order to solve those problems. So, constrained on power was a secondary concern. The question, of course, was: what form or what forms this power would take? As many scholars have pointed out, on one reading of the Constitution, that dominant vision appears to be of unitary power, exercised by a strong central state, designed to be the vehicle of social, economic, and political transformation, and of a constitutionalism to court that suspends suspicion of the state. That's a dominant view of constitution and power.

But a closer look at the Constitution reveals… and this is the argument I make through the book in different contexts, is that… well, two things. One is that, even as various parts of the document gesture towards a strong centralized state, there are other parts that are in tension with, and even undermine, this vision. In short, the Constitution is best understood as a terrain of contestation between different and, at times, conflicting ideas about the organization of power. And in the book as a whole, I identify six such axes of power and how the Constitution is a terrain of contestation on each of these axes. These include, for example, the federal axis, which is what I'll be discussing today. They include distribution of power within the house: the upper house, lower house. Within the lower house, opposition and government. So, basically, within parliament, how is power distributed.

One chapter is about the power between elected bodies and non-elected bodies. So, commissions, electoral commission, statutory commissions like the Right to Information commission, and so on: how is power distributed there. There are six such chapters, each of which deal with one axis of power. And my overall argument at the end is that, even though there is the Constitution at a terrain of contestation, there is and has been a centralizing drift over time. So the Constitution structure lends itself to a centralizing drift. And at various points, and I call these inflection points, in our constitutional history, when the Supreme Court is called upon to answer a question, where constitutional provision is silent, ambiguous, open to interpretation, where the contestation is clear, the court tends to pick an interpretation of the Constitution that strengthens centralization over the reverse.

So it's not that the court didn't have a choice, not that the court was bound by the provisions to do this, but the court makes an active choice. And that, coupled with the Constitutional text structure and design, leads to an overall centralizing drift that has been with us over previous seven decades, and continues to be there. But at the same time, the very fact that it is a terrain of contestation, the very fact that provisions are not self-interpreting, and the very fact that the reasoning the judgments, that I will show, reveals that choices are being made, also shows us nothing. This is really important bit, that the centralizing drift is not inevitable. It's not in the nature of things. And it is possible to reverse it. How that is to be reversed is, of course, much more difficult and larger question. But I think that identifying the problem and identifying that it's a contingent problem and not a permanent one is something of stuck, and that's the basic task of the book.

Of course, given that we only have time to discuss maybe one illustration, the one I've picked is federalism, because I think it's most familiar to people from different countries. And I think also because the case in question, the inflection point I discuss, really lays out that contestation very, very sharply.

So, India, in Article 1 of the Indian Constitution says that India is a Union of States. So it's a federal constitution. Of course, as everyone knows, the powers in the Constitution are skewed towards the federal, or as we say in India, the Union or the Centre. So residuary law-making powers are with the Centre, the Union. The federal Parliament, Union Legislature can create, destroy, modify the boundaries of states. Many such provisions are there that skew that balance of power. But, of course, disputes still arise. And in those cases, the questions arise, and given the structure how to interpret a case where there are contesting interpretations of Central and State power, and what a court is meant to do.

I think there are many judgements that you could study to understand how the court has dealt with this issue. One of the stark and most important judgements, the judgment called State of West Bengal v. Union of India, an early case delivered in the mid-1950s, and that case, in my view, set the tone in many ways for a certain kind of understanding of Indian federalism, that I will go on to discuss. What were the facts of this case? Facts were that, in 1957, the Union Parliament passed a law called the Coal Bearing Areas Act of 1957. Under the framework of the act, the Central Government issued notifications intending to acquire land, which was then held with the State of West Bengal for coal prospecting and mining. The State Government approached the Supreme Court, challenging both the law and notifications. Its primary argument was that Parliament lacked the Constitutional power to acquire State property, property of several states; now, "states" is small s, not the capital S.

The key issue was interpretation of Entry 42 of List III of the Seventh Schedule of the Indian Constitution. To break it down, there are various fields of legislation: some that the Union Legislature can legislate under, some for the states, and some in which both can pass laws. The Seventh Schedule of the Indian Constitution sets out these fields. List I is the list that has all the fields under which the Union can legislate. List II is the list of all the fields in which the State can legislate. And List III is the fields in which they both can legislate, but the caveat that in case of conflict, the Union law will prevail. Again, this is a bit reductive, but that's basically how it works. So, the issue was that if you can't trace the Union law to a specific entry in either List I or List III, then it's unconstitutional because you did not have the power to pass that law.

The only plausible candidate in this case was Entry 42 of List III, which simply read: "Acquisitioning and requisitioning of property." So, the power of acquisitioning or acquisitioning of property was in List III, the field, which meant that most the Union and the State could pass laws about that. State of West Bengal argued, however, that Entry 42 ought to be interpreted with an implied exclusion. That is, you should read the provision as saying: "Acquisitioning and requisitioning of property, except State property."

What was justification for reading in the additional three words that were not present in the text? There were many arguments made by the State of West Bengal. For our purposes, one argument was particularly important, that the concept of federalism implies that: within their respective spheres, as assigned by the Constitution, the Union and the states are sovereign entities, and one sovereign cannot forcibly acquire the property of another sovereign. That was the argument that the State of West Bengal made. The case was heard by a six-judge bench of the Supreme Court. Realizing the importance of the issue and determining the character of Indian federalism, the court invited all the states of India to make submissions. Many of them did. Eventually, by a majority of five to one, the court upheld the law and rejected the State of West Bengal's [inaudible 00:21:26].

Now, the majority of the Supreme Court arrived at this conclusion by examining the history of Indian federalism and then drawing out certain constitutional consequences from that history. The administration of British India, it noted, had been unitary and highly centralized. There was a gradual process of devolution that had begun with constitutional reform in 1919, and later in 1935. Provincial governments that were popularly elected controlled certain fields of administration, of course, with the rate of the governor general, the crown regent, remaining supreme. And finally at Independence, the Constitution was elected on the foundations of the Government of India Act of 1935. While in some respects, a greater degree of economic unity was sought to be secured by transferring subjects having impact on matters of common interest into the Union list. This is all Supreme Court's interpretation of history, particularly in the field of economic unity, so the greater centralization at the time of Independence.

Now, what implications did the majority of the court draw from this pretty schematic history? First, the majority observed that the result was a constitution which was not true to any traditional pattern of federation. By "traditional," the court appeared to imply federalism US-style, where a number of independent states had voluntarily come together and seeded a part of their sovereignty to form a federation. According to Indian Supreme Court, this was the truly federal form of government. Whereas by contrast, the Indian situation involved the withdrawal or resumption of all the powers of sovereignty into the people of this country, and the subsequent distribution of these power between the Union and the states. This, the court said, was reflected in the fact that the states had no constitutions of their own, had no power to alter the Constitution. And particularly importantly, according to the court, the distribution of powers between the Union and the states was heavily weighed in favor of the Union, which is something I alluded to just a while ago.

So, on this basis, the court basically held that, given this clear sense of Union dominance in the Constitution, there was no warrant to hold that there was an implied exclusion of Union power to acquire state property in the Constitution. That was the court's holding. But the importance was not just the holding, [inaudible 00:24:08] it was, but also it was a more broader articulation of this idea that, because the existing text and structure of the Constitution and the history that the court sanctified implied a more powerful union and less powerful states, it, therefore, followed that whenever there was a dispute over a provision whose interpretation was not fully determined by its text, the correct reading of that was a reading that decided it in favor of Union power, and not State power, because the idea was that the Constitution is meant to privilege Union power over State power.

So, that was the corollary that remained almost unspoken, but was an underlying part of the court's judgment. And that corollary, then, was to basically… and still is, has become a sort of constitutional common sense in the adjudication of federal questions in India for a long time. I don't have time to go into individual instances, although we can discuss that, but there are many. So, even before this case, there was a case involving alteration of State boundaries, where the court read down the rights of states to be consulted before State boundaries were altered. That has been an issue throughout. Courts tell that the upper house need not represent the interests of the states by having a domicile requirement; that a person, who ostensibly represents a State in the upper house, has to be domicile in that State, the court said there's no need for that.

Other such cases also involve, and this is where the link between the organic and the engine-room part of the dogmatic part come in, where many of India's national security laws that cut down rights, anti-terror laws, have been challenged in the course of our history. And while the famous parts of these cases involve Fundamental Rights challenges, confessions to police officers, bail, all of that, the part that many people miss out on is that, in all these cases, there was always a primary federal… the first preliminary challenge is a federalism challenge on the ground that public order, and law and order are State concerns. And so, a lot of these laws should not exist because the Union Legislature does not have the power to implement, to pass those laws.

The notorious Armed Forces (Special Powers) Act, AFSPA, which allowed shoot-on-site orders, was, in fact, challenged strongly on federalism grounds. And the same idea that you need to interpret the Union list broadly to save the power of the Union at the expense of the states was upheld in that case. So, if you read all those cases, India's famous civil-rights cases, you'll always see in the beginning, the first challenge is a federalism challenge. And that's the part that's often not discussed. There are other examples, as well, and we can discuss them. Right now, there's not enough time to go into each of them in detail. Revenue, legislative relations, finances, all of that; there are cases in every domain that exemplify the same centralizing drift.

But the final bit I want to touch upon is that, I'd said in the beginning that the Constitution's a terrain of contestation. And none of these choices come predetermined. There are active decisions made by the courts. And the best way of revealing the contingent character of this reading of the Constitution is if someone dissents. So, then you have two stories coming out of the same institution: the court. And we are fortunate that in State of West Bengal v. Union of India, there was a powerful dissenting opinion written by one of our, I would say, most famous dissenting judges, Justice Subba Rao, who has a series of dissents, in the 1960s and late-50s, dealing with a range of issues. So, he disagreed. And then, what did he say?

To start with, there are a couple of things. One is that the actual history of Indian federalism in the colonial period is substantially more complex than the majority straightforward account of a unitary state that engaged in discretionary and incremental devolution to provinces that were created by its own sufferance. On the contrary, representative government in colonial India, which first came into being in a partial fashion in 1909, began with responsible provincial legislatures. At the Union level, it was still pretty autocratic. A limited Union Legislature was birthed many years later. With the appearance of responsible provincial legislatures, demands of autonomy at the provinces became part of the political lexicon of colonial India, featured extensively in constitutional debates leading up to the Independence years. And the existence of independent provincial identity is revealed most tellingly in the fact that in substantial part, the Constituent Assembly, and this is something you can see if you open up the debates online, was composed of members who were nominated by provincial legislatures and who spoke as representatives of their provinces.

Nehru united provinces so and so, Bombay, so and so, CP and Berar. They speak as representatives of provinces. And so the Supreme Court's fundamental premise that the Indian Constitution was based on, what it called, the Legal Theory, that all sovereign power was transferred from the British to the people and then distributed between the unions of the states, is obviously a very partial reading of the historical record. The great Indian legal scholar, S.M. [inaudible 00:30:14], makes this point in his critique of the judgment.

And of course, the next thing that follows is that, even if you grant that this is the constitutional structure in history, the inference the majority makes is unwarranted that it, therefore, follows that normatively, a dispute, which is, on text, ambiguous, or to go towards saving Union powers. Because, in fact, you could equally well argue, and this would flow from the alternative reading of Indian federal history, that the very act of the Constitution, especially setting out those domains in which the Union was meant to prevail, actually encodes the federal principle, which is that, where you don't explicitly specify that the Union prevails, the Constitution must be interpreted the other way, in a way that respects federal division of powers instead of centralizing power. And that is something you see very persuasively articulated in the dissenting opinion, both this history, and then the inference that flows from it.

So, Justice Subba Rao notes, first of all, that there is no reason why the US federal experience should be taken as the global default. And he then observes that indeed, and I'm quoting from his dissenting judgment, "pre-existing independent States may not be given any appreciable power under a constitution, while newly formed States may enjoy larger power under another constitution. A federal structure is mainly conceived to harmonize existing conflicting interests and to provide against future conflicts. India is a vast country: indeed, it is described as a sub-continent. Historically, before the advent of the Constitution, there were different Provinces enjoying in practice a fair amount of autonomy and there were innumerable States with varying forms of government ranging from pure autocracy to guided democracy. There were also differences in language, race, religion etc. There were also foreign pockets expected to be incorporated into the main country. In those circumstances our Constitution adopted a federal structure with a strong bias towards the Centre."

So, whereas, what is indisputable is that, in the constitutional text, there is a skew towards the Centre. There are very different readings of the history leading up to that structure and the consequences that follow from that.

This second reading is what I would call the federalizing approach, as opposed to centralizing approach. Federalizing approach is based upon the following historical and normative assumptions that run counter to what the majority judgment held. First, that as a matter of history, federal structure and the federal impulse was a part of Indian Constitutional history in the run up to the framing of the Constitution, what [inaudible 00:33:18] calls the "existence of a federal situation" in India. Secondly, that the heterogeneity within the Indian Union provides us with a normative reason for supporting and upholding the federal structure and the federalizing approach. Thirdly, and therefore, interpretive disputes within the Constitution's already skewed federal framework, skewed towards the Center, are meant to be resolved in favor of expanded provincial or expanded State power, and limited Union power. Thus, as Subba Rao ji noted in the words that encapsulate this approach, and again, quoting, "The Indian Constitution accepts the federal concept and distributes the sovereign powers between the coordinate constitutional entities, namely the Union and the states. This concept implies that one cannot encroach upon Governmental function or instrumentalities of the other unless the constitution expressly provides for such interference."

So you can see that there is one argument holds that because the Constitution has so many express provisions that privilege Central power over State power, it therefore follows that our constitution is meant to privilege Central power over State power. And that's the interpretation we should accord to it as a dispute. And that flows from one historical reading of what happened. The other reading is that the very fact that the Constitution deems it necessary to expressly stipulate where Central power override State power, it, therefore, follows that in all other cases where it does not stipulate expressly, we should interpret power in favor of State power and constraining Union power. And that flows from a different historical account of what happened and why we have a federation in India in the first place.

Now, as I've said, problem, of course, is that, over time, it's the majority opinion that has basically captured the imagination of Indian Constitutional doctrine, the courts, and it's almost become common sense subject to a few exceptional cases that, again, we can discuss, I wouldn't go into them in detail. But what the majority and the dissent reveal, and I'll end with this, is the basic point about the Constitution being a terrain of contestation.

So, two differing ideas of power, how power is divided and who exercises power and at whose expense are both plausible, given the text structure and history of the Indian Constitution. Invariably, given the way that our polity functions, disputes will have to be resolved by the courts because they are, fundamentally, disputes about the interpretation of the Constitution. When a dispute comes before the court, you have what I've called an inflection point, where the court's judgment, then, answers the question in one way. It sets us down a certain path, and at least for the moment closes off other parts. But if you focus on the court's reasoning, what you'll find is that those parts aren't inevitable. And of course, that also means that our journey down one or the other is not inevitable. So what has been interpreted can always be changed. But a close focus on judicial reasoning shows us the various options open and the manner in which the contest plays out on the terrain of the Indian Constitution.

And in the expanded project, basic argument, in each chapter, will be taking a case of this kind, demonstrating how on a certain axis, whether it's federal axis, the axis of constitutional pluralism, the parliamentary axis, the axis around institutions like commissions, in each case you have contestation over the distribution of power, and who has power and who doesn't and what that kind of power it is. On each axis, there is a choice between the reading of the Constitution that ultimately takes us towards a much more centralized, unitary, homogenous vision of the Constitution and the state that it sets up on the one hand, and a more diverse, plural, heterogeneous, divisible idea of power, the State and society. And whereas the dominant reading is the first one, it's always possible to retrieve the second reading.

So, that is broadly it, and I'm looking forward to the discussion and the questions.

Sarath Pillai:

Well, thank you for that wonderful talk. We have questions, so I think I should get right into the Q&A. Why don't I invite Indivar to ask question first.

Indivar Jonnalagadda:

Hi, thanks so much. Thank you, Gautam, for a fantastic talk. That was really interesting. You really compellingly showed that the Constitution is a terrain of contestation, but you also showed that there's a common sense, a mainstream or hegemonic view. So I'm wondering, who or what kinds of agencies are able to use it as a terrain of contestation or to effectively contest it at that level, especially thinking about civil liberties movements, or people's movements for democratic rights? Thanks so much.

Gautam Bhatia:

I mean, of course, the formal method of contestation isn't court. And there, effectively anyone can contest. If you look at federal disputes, it's between States and the Union. If you look at civil rights disputes, it's between movements, the AFSPA case was Naga people for human rights versus of India; or individuals, Kartar Singh v. State of Punjab. So it could be anyone who engages in contestation. But I think one thing, and that's something that this book will not touch upon so much, is that the court is not the only arena of contestation, and indeed, sometimes not even the most important one. If you look at the recent history around, for example, the farm laws, which I'm sure all of you have followed, there, the contestation took place entirely outside the courtroom. And in fact, the protagonists with good reason did not trust the court, as that particular iteration of the Supreme Court at that time as being a fair arbiter of this particular contest.

And of course, the farm laws had, among other things, the federal component, as well. If you look at the protests around the Citizenship Amendment Act and the NRC three years ago, again, you find repeated invocations to the constitution's… specifically Article 14. And if you look at it, it's, again, not a courtroom argument because the Supreme Court's interpretation of Article 14, and again, not really going into the weeds, but over time, it has been predominantly formalist and also particularly hostile to non-citizens, right?

So, in that way, you're not really contesting the C… of course you are. There are petitions. So you are contesting the CAA in the court, but you're also using the terrain of social movements and the public sphere to articulate a different kind of contest on the same constitutional terrain, which does not follow the idioms of the court. I think that's an aspect, as well.

Sarath Pillai:


Tariq Thachil:

Oh. Thank you. Gautam, thanks so much for that very provocative and stimulating talk. Just two questions that I had. One was, there was this kind of tension that you held out between contingency, and the fact that these things can be… some of these currents, if this constitutional common sense, the centralizing drift can be undone. But there was also a sense I got in your talk of past dependence, that earlier decisions do carry more weight. And so, do you see that as a tension in any kind of opposing currents, that actually those early victories will be in some ways, or any kind of early victory in opposing direction would actually be the hardest to attain? Because there is a kind of path dependence in the process that you outline.

And the second was, whether there was ever evidence of the… I know that's not your focus in the book, but the larger political impulses behind the centralizing drift. Were there ever moments where the political currents went against that? I'm thinking of eras of coalition politics or where regional politics is on the rise, where we see that kind of a moment that offers also some sense of the possibilities for change, or where the winds of change come from.

Gautam Bhatia:

If I answer the second question first, I mean, there was a very important moment before Independence, the Cabinet Mission Plan that would've led to a much more decentralized idea of structure of the country. And of course, that was scuppered… Anyway. You're right in that there are times when pure politics is where the contestation happens and the period of coalition government is a very important one. And in fact, one of the points I make in the chapter on Parliament is that: because the internal controls within Parliament on the executive have been effectively destroyed over the years, the only check is elections and a coalition. Because right now, within the structure of the lower house and the upper house, when you have partisan speakers, anti-defection law, and a number of other things… money bills, a number of things that effectively place the executive in complete control over the opposition and the Parliament, the only check, then, is politics and coalition.

And if you don't have that, Constitution can't do anything in that case. So, I think that, yes, there are periods of politics that provide in alternatives, and in that way, operate outside the constitutional framework, although not in violation of it, obviously. But one of the key points in the book is that the Constitution, and the way it's interpreted, makes some things possible and makes some things harder to achieve.

You could imagine a situation where you didn't need a coalition to exercise a check on the executive. If you had a reading of the Constitution that mandated speaker independence, that did not allow money bills to be certified wrongly, and so on, number of things, then the political salience or variance of coalitions would decrease. Because you don't have that, it's more important. So the politics isn't bound by the Constitution, but its significance is always of going, doing a back-and-forth with the Constitution. That's one thing.

On the path-dependence part, I think that it was actually much easier to win those victories in the early years because it was still in play. I mean, if you look at the '50s, if you look at some of the questions that came up in those cases, a lot of it was in play. A lot of it is no longer in play because the Supreme Court has said it's no longer in play. So, that's the problem. So the more precedent accumulates over the years, the harder it becomes to then find… I mean, it's just that the more you go down the path, the harder it is to turn back and then fork in the road. So it's always possible, but it becomes harder and harder.

Sarath Pillai:

Well, we have quite a few questions, so I hope we can get to as many as possible. So, next I want to call Vqueeram.


Hi. I'm sorry I won't be able to switch on my laptop, the video. But Gautam, thanks for that. That's really provocative. And I look forward to the book because I'd like to read it in its density. But I was just wondering, if more than anything else, there's really, at heart, less theory of the power that the Constitution is grappling with, but more than that, a kind of ethics of reading, that is that, at heart of the question in the case that you presented, the majority seems to rely on a historicized reading, not historical, but historicized. And the other is this Subba Rao's dissent, which seems more literal, which kind of relies on the absence of words as evidence of the presence of something else.

And so, perhaps the question should be even less rugged at what does power really rely on, or what are the limits of power, but more really, what are the limits of a practice of interpretation itself. And so, maybe even in both cases, and even if we were to see more divergence, and I could think of a few cases myself, what we might see would be an emphasis on one or the other reading, but not, say, departures from these practices. So, say, you will never see a speculative reading.

So I'm thinking, is there something at heart which is more a theory of interpretation more ontologically that restrains what the court can say about the Constitution than anything else?

Gautam Bhatia:

Yeah, I think that's right. I mean, it is interpretation, and from everything that I've seen, both in practice and in reading, judicial interpretation is ultimately conservative. It's not really going to bring about… You don't want to have a secessionist reading of the Constitution that's from the court, at least, because that's going to impossible. Again, if you look at the early judgments on Kashmir, Prem Nath Kaul, and those cases that begin by actually giving sanctity to the Constitution of Kashmir, and then very quickly the court walks back on that. You see that happening over time. So in that sense, yeah, I think that dominant judicial readings ultimately are going to be conservative. As far as the project itself, I think the goal, in a sense, is to show that you can and maybe you should try and read the Constitution in a way that attempts to counteract centralization of power and attempts to advance a more heterogeneous, pluralist reading than the alternatives. So in that sense, yes, I mean, I think that it's basically trying to advance a reading that breaks down parts instead of building it up. I think I would say that's the kind of project in a certain way.

Sarath Pillai:

Well, I want to quickly ask a question myself, as the question of constitutional interpretation is something that interests me quite very much, as well. When you speak, Gautam, I do see how historians might be looking at some of the problems that you talk about as opposed to someone who tries to find answers within the realm of law, as you might be trying to do. So I was wondering, especially when we talk about the debate between unitarism and federalism, how does one take into account the fact that we have decades of stride and advocacy by the nationalist in the '20s, '30s, and '40s about a unitary state, right? I mean, we know the history of federal debates in the '20s and '30s and how it ends up where it is. There's unsparing critique of a loose federation or a loose Centre by the leading lights of international movement.

And I'm just wondering, how does that fit into this narrative, either of the transformative, or the… I mean, I know that you have certain reservations about historical continuity, which you made very clear in your last book, but I find it difficult to reconcile the fact that there's a certain kind of script to what happens in 1947, which is not really happening in 1947 alone, but it's been long in the making. So I wonder, is it just a question of history versus law, or the historians will continue to see these ideas and historical processes having an important effect in 1947? Or is there a different way to look at it as a matter of constitutional interpretation more than as a reflection of historical processes and ideas?

Gautam Bhatia:

The matter of constitutional interpretation, there are things that you can take into account and things that you can't. Again, that is something that is always open to conversation. Conservative constitutional interpreters will argue that "All you can take into account is the text, and where the text is ambiguous, you can, at best, look at some of the Constituent Assembly Debates to extract to what the intention was that you can't go further." More progressive interpreters will argue that "No. Actually, you've to look at the whole thing in its context and the historical moment in which the Constitution was framed should enable or should facilitate the understanding of how you should read its provisions, along with, of course, a moral understanding of what a constitution is for." So, in that way, all of these things together form a theory of interpretation, and what weight each of those components has is something people will disagree over. And ultimately, it comes to what you, as a leader or as citizen, find the most plausible and persuasive understanding of the Constitution.

Some people find most persuasive reading that just says you're going to look at the text and the debates, that's it. Some people find a more expansive reading more persuasive. There's no correct way to read the Constitution. There are defensible and there are more defensible and less defensible ways to read it, let me put it that way. And of course, there is one reading that ultimately has power, which is the court's reading, because that, then, becomes the law. But I think the answer to your question is that, as long as you can fit in that bit of history into a reading of the Constitution where it makes sense for why you are doing it, then it's legitimate to do that.

Sarath Pillai:

Thank you. Next, Amrita?

Amrita Kurian:

Thank you, Sarath. Thank you, Gautam, for a very interesting talk. I was just thinking through your paper, and it always seems like you have these two strong themes that hit against each other. And instead of a third thing being formed, it almost seems like one wins and the other doesn't. I mean, of course, history, politics, all of that play a very important role as to why one wins or one ends up being the dominant tendency. Even you take it for granted that interpretation of the law is likely to be conservative.

Why do judges, who's task and who's trained to interpret the Constitution… and you say that there are two different impulses in the Constitution itself. In spite of that, they tend to follow the common sense or they tend to take in the centralist view. Is that a part of a longer cultural tendency? Is that institutional and educational, because you did mention a statement about how law is taught. Is that the result of that? And then, of course, you did mention that you didn't want to touch this, but I'm very curious to know, in terms of taxonomy, which is another thing that's very rampant in your work, where do we begin, at least in terms of taxonomy? If you think in politics history, it's very difficult to grapple with it, but as a text or as something as taxonomy, where do we begin to rethink the whole interpretation or the commonsensical interpretation? Thank you.

Gautam Bhatia:

As far as why do judges act the way they do, I think that there is a very straightforward answer, which is that if you look at the class background of judges, I mean, you'll get your answer. It's kind of like a way of thinking that, I think, is shaped by the socio-economic milieu that judges come from. And this is nothing new. This is something that people have argued for different countries for many years. Specific to India, I think one interesting thing, something I've always found interesting, is that if you look at, for example, the South African post-apartheid constitution, if you look at the Kenyan constitution post-2010, what you find is a very active attempt to make sure that the people you're bringing in as judges are steeped in the values of that new order.

In South Africa, the people you appoint had been Edwin Cameron, Kate O'Regan, and after that, Dikgang Moseneke, who spent 10 years in jail in Robben Island for being a member of the Pan-African Movement. They were all anti-apartheid lawyers who paid the price for their anti-apartheid lawyering, spent time in prison, and now they've become judges. So they come from the same sensibility, in a certain way, or in even more radical sensibility than the one that finally framed the constitution. In Kenya, when they moved from one-party state to a multi-party democracy, there [inaudible 00:56:30] was active change of guard with respect to judges.

In India, if you see the old Federal Court judges became the new Supreme Court judges. And again, it's not to critique their competence or their abilities as adjudicators, but it was literally a transfer of power in that way, that yesterday you were enforcing colonial law, and today you are enforcing the Indian Constitution. And I think there is a little bit of a problem over there. So, that's one.

On taxonomy, yeah. Actually, in a certain way, this project is an attempt to provide an alternative taxonomy, which is that you divide up the Constitution into various axes of power, and then look at the provisions in that context: what are these provisions doing with respect to this axis of power. I mean, just to give you an example, Article 282, which deals with the distribution of finance, on one reading, is a purely financial provision. That is a part of the Financial Provision chapters. So, that's classical taxonomic way of looking at it. In my reading, it is part of the overall federal set of provisions that deal with who has power on money and to what extent: the Union and the states. So in that way, it's re-reading in that sense or re-taxonomization in that sense.

Sarath Pillai:

Well, we just have about five to six minutes, but I'll go on and call the other two people who is waiting in the line. First, Shikhar?

Shikhar Singh:

Hi, Gautam. Thanks for this really informative talk, and I look forward to reading the book. My question was about the judiciary's organization itself and how it is structured. I know you're focusing on federalism in this talk, but does the judiciary's own organization or distribution of power or authority influence this kind of centralizing drift? And in particular, even if you were to, say, look at cases of federalism, is there an echo of that in the way it decides questions of distribution of power? Thank you.

Sarath Pillai:

Can I interrupt and have the other person also ask questions so that you can answer them together?

Gautam Bhatia:

Sure, sure. Yeah.

Sarath Pillai:

Suvir Kaul?

Suvir Kaul:

Gautam, I want to with a compliment for all that you do to make the languages of the law and legal judgments comprehensible for people not trained in the law, but I have a very narrow question. Legal scholars who try and understand the evolution of the document, that is the Constitution, often turn to Constitutional Assembly Debates. Have you ever seen any evidence of any of the judges, who actually interpret the Constitution, actually looking back to those debates to come up with a sharper understanding of what might have been intended… I know that's a loaded term, but that might have been intended in the language of the Constitution?

Gautam Bhatia:

I'll answer that first. Yeah, they do. They do it all the time. We, as lawyers, do it all the time. Just right now, economic reservations, ongoing case just on Tuesday I was briefing, I was involved in that case, and we made an argument based on the debates. Most, maybe, detailed analysis in recent times was in the Sabarimala judgment, where they went into great detail on Article 17 and the debates around that. If interested, that is an interesting judgment to study. Yeah, I think the problem is twofold.

One is, as Aditya Nigam says, it's a polyphonic assembly. So, whose voice matters, whose voice has weight, does Nehru matter more than Rachhpal Singh, does Ambedkar matter more than Rajeshwar Prasad, that's one question.

Second is that picking and choosing material to suit your outcome is a big problem, both for scholars and for judges. So, to answer the question, it is used, but there are problems, just inherent in the enterprise, which you have to be aware of and conscious of.

Finally, in Shikhar's question, yeah, I mean, this is a great question, and you're absolutely correct. The centralizing drift that I refer to has the pronounced and very unhealthy form when you look at the court, which is that, more and more you have the continuing irrelevance of the Subordinate Courts and the High Courts, specifically when it comes to resolving constitutional questions involving distribution of power. So more and more, what you find is that whenever there are stakes, and by stakes, I mean, whenever the Union executive, not any particular executive, but the Union executive as an entity, has stakes, the Supreme Court will basically stop High Courts from hearing the case and will decide the case itself. That is a big problem. And over the years, that has become worse and worse.

So, up to the '70s and '80s, you would find High Courts regularly dealing with constitutional questions, and Supreme Court then actually playing as well as an appellate court, considering those judgments. Now you find the Supreme Court just has become the first and final point of call. And that, of course, is a problem because the Supreme Court is a central court. As in, it's not the American situation where the state courts are the final words in the state constitution, and the Supreme Court of the US is the final word on the Federal Constitution. Whereas here, you have the Supreme Court that's located in Delhi, five minutes from the Union Legislature, also being the final word.

So, I think it's very difficult to prove it, but I think that, yes, you're right in that the centralizing drift is visible within the judiciary's structuring over the years, and also plays a role in the fact that the centralizing drift comes through the court interpreting constitutional provisions. And it's something that I'm still wondering where to fit into the book, but it's something that's on my mind.

Sarath Pillai:

Okay. I think that brings to a close this seminar, and I think we should all virtually clap Gautam, or maybe not virtually, or however you choose.

Gautam Bhatia:

Thank you. Thank you.

Tariq Thachil:

Thank you so much, Gautam. Thanks for joining us.

Gautam Bhatia:

Yeah. Thank you, and see you again soon.