‘Kashmir Se Kanyakumari (from Kashmir to Kanyakumari)’ is a common phrase that attempts to showcase the expanse of India. How do elected union governments govern such a culturally diverse country? The answer, perhaps, lies in the Indian Constitution, which is meant to be a guidebook of India’s socio-political systems, and for Indians in general. Birthed in 1950, it has witnessed many challenges, including attacks on federalism, complications in the Centre-state relationship, and the restrictions on fundamental rights promised by it to the citizens. Excerpts from a conversation with Delhi lawyer and jurisprudence scholar Gautam Bhatia on his new book, The Indian Constitution: Conversations with Power (HarperCollins):
How does your book contribute to the existing discourse on the Indian Constitution?
This book analyses the Indian Constitution as a whole. So far, there have been many studies to analyse it in parts—some focused on fundamental rights or on the Centre-state relationship. I examine how it creates and shapes channels and institutions, and also constrains power.
Does your book emphasise the working of the Constitution, mainly in the 2019-2024 time frame? And do you think India’s constitutional structure has come under unprecedented attack during this period?
The book does not deal with any particular time frame at all. It does not showcase only five years of a particular regime. Instead, it focuses on the past 75 years. Although, some illustrations are based on the events that happened between 2019-2024, the basic argument is about how the Constitution has been treated over the past 75 years. I do not think that the attacks on the Indian Constitution were uniquely high in the past five years. Every time a party comes with a huge mandate, they try to centralise the political and administrative system.
How does centralisation of systems take place and why do political parties follow the same path?
Centralisation of the system can take place through a handful of measures. For instance, the Centre often imposes many conditions on the states’ financial borrowings; the power of the states then becomes limited to achieving their financial goals. In the first chapter of my book, I have mentioned one such legal battle between the Centre and the Kerala government in 2023. Secondly, to understand why centralisation has been advocated, we need to go back to the days when the Constitution was being framed. B R Ambedkar was in favour of a centralised pattern because he saw the local power bodies, which used to practise caste, as the biggest threat against the practice of individual freedom. Nehru wanted fast-paced development, hence, he advocated for a strong executive system that would make assemblies redundant. Many thinkers also proposed a common economic market so that the states could not propose different tariffs. Many of these conditions are still applied.
Even after 75 years of the Constitution coming into force, why is there still discrimination in the name of religion, caste, culture, and gender?
The Constitution is, after all, a document. It can promise the rule of law and equal opportunities for everyone. Implementation of those rules depends on the people who are administering constitutionalism. The Constitution can create institutions and put some laws in place, but it can never alter society. In the end, it relies on the play of politics.
Will delimitation reduce the bargaining power of the southern states? Also, do you think delimitation, which has population at its Centre and is ostensibly about seats and representation, also runs the risk of harming labour mobility from the north, say from a place like Bihar, to the south?
I do not think labour mobility will be hurt. Labour will move from one state to another, as long as the other state has economic opportunities. However, if the proposed delimitation takes place, then the southern states will lose bargaining power as there will be a reduction in the number of parliamentarians from those states.
The book has a chapter on constitutional pluralism. In the Indian political structure, some states enjoy special powers and benefits. For instance, Kashmir, for a long time, enjoyed special powers under Article 370. There are some other states, which have other provisions in their favour. How do you look at it? What is your opinion on ‘affirmative action’?
See, the term ‘affirmative action’ is not correct. I do not know whether anyone uses the term. Constitutional pluralism, or what I call, or what everyone else calls, asymmetric federalism, is basically a situation where, in a diverse and plural country, different federal units have different relationships with the central unit based on specific historical, political, linguistic, and ethnic considerations. For example, in Canada, the state of Quebec is the only Francophone state in an English-speaking country. Quebec, therefore, enjoys a certain degree of autonomy that other states don’t have. So, this is very common across constitutions in diverse countries. Now, in India, if you look at the history of the constitution, you see why certain specific constitutional provisions exist for each of its states; there are specific historical reasons why that is so. In Nagaland, for example, there was, for the longest time, a long-running movement to secede from the Indian Union, and the special provisions for Nagaland were ultimately brought in as a way to satisfy the aspirations of the Naga people within the framework of the Indian Union. So, look at each provision in its historical context and ask why it exists the way it does.