A tour of the Constitution

A young scholar provides a fascinating and comprehensive view of the Indian Constitution.

The book under review, authored by Madhav Khosla, a PhD candidate in political theory at Harvard University, is a promising attempt to unravel for the average reader the complexities in the making and working of the Indian Constitution. The book is published by Oxford University Press (OUP) as the first one in a series of short introductions on different subjects.

The Indian Constitution surprises the reader on two counts. Students of Indian Constitution have long had to read commentaries by teachers of law or practitioners on each of the 395 Articles and the 100-odd amendments, with all the relevant case laws, to make sense of the Indian Republic. These commentaries run into several volumes, making it an arduous task for a student to achieve even a rudimentary understanding of the Constitution, let alone digest it. Khoslas book, in the form of the long essay, is, therefore, a welcome alternative for those who are uninitiated and would like to familiarise themselves with the issues the Constitution has given rise to over the years.

The book fills a vacuum in the area of political studies of the Constitution. The much-cited study by a political scientist, to date, is The Indian Constitution: Cornerstone of a Nation by Granville Austin, which was published in 1966. Austins second book, Working a Democratic Constitution, was published in 1999 and is a masterpiece on the milestones in the evolution and working of the Constitution. By and large, however, Austins work adopts the chronological method to compile the developments, leaving the reader interested in a conceptual understanding of the Constitution hungry for a different book. And here lies the second surprise: undaunted by the tomes produced by insightful scholars before him, Khosla compresses the entire discussion thus far on the Constitution into four convenient chapters: separation of powers, federalism, rights and goals, and changing the Constitution. A book similar in title to Khoslas, Introduction to the Constitution of India by D.D. Basu, was published in 1981. It had 31 chapters running into 436 pages and discussed the subject Article-wise instead of thematically.

Short on legalese, the book woos even an otherwise uninterested reader, as if it promises a gripping story. This is how Khosla begins his Introduction: It was the winter of 1946, and over three hundred men and women had come together. Travelling from varying intellectual traditions, and holding diverse descriptions of a free nation, they formed the Constituent Assembly. It was the body vested with the all-but-easy task of drafting a Constitution for independent India. The assignment was one that would take them almost three years, and make them participants in an extraordinary experiment in human history.

Khoslas aims are modest. He writes: The document is complex with provisions that are prolix, and I hope that this book can help explain its architecture while gently touching upon some of its themes. Readers will get a tour of the Constitution.... I hope, however, that some questions I shall raise will stimulate debate about our constitutional culture, and encourage engagement with this fascinating text. While in certain places I push the envelope and explore a thesis, my ideas are often inchoate and hope to provoke rather than persuade.

And it is on certain controversies over the interpretation of the constitutional provisions that Khosla makes his position explicit, irrespective of what the Supreme Court might have held. In 2003, Parliament amended the Representation of the People Act, 1951, to remove the domicile requirement for membership of the Rajya Sabha (the Council of States), as Members of Parliament were uncomfortable with the interpretation that members elected from a State must ordinarily be residents of that State. When the eminent journalist Kuldip Nayar challenged the amendment, the Supreme Court reasoned that residence was not a constitutional condition for representation. Khosla feels that the court failed to explicate what the requirement of representation in Article 80 entails and how it could safeguard State interests if it did not do so through the residence requirement.

Similarly, Khosla laments that the anti-defection law gives legislators no room to vote their considered opinions and thereby express impartial views, something thought to be central to preserving the dignity of law. According to him, the anti-defection constraint ought to be limited to cases involving a vote of confidence or a no-confidence motion.

Khosla describes the Supreme Courts clean chit to the MPs who took bribes to vote against the no-confidence motion against the P.V. Narasimha Rao government in 1993 as a result of an impoverished understanding of the immunity granted by Article 105. The purpose of the immunity is to protect MPs from being liable as a result of something they may say or a vote they may cast. The Supreme Court broadly construed Article 105 to mean protection for all actions that relate to or concern or have a connection or nexus with the actual act of voting in Parliament. The courts reasoning resulted in an absurd situation: one MP who allegedly took a bribe was denied immunity since he had abstained from voting.

The doctrine of separation of powers makes a scholar take a position on a given issue and support either Parliament or the judiciary. Khosla is no exception. Does the judiciary have the power to review Parliaments powers? Yes, indeed, if it pertains to its power to expel a member from the House, as it does not possess conclusive powers under the Constitution in the first place, Khosla says. He is also on the side of the judiciary on the question of the appointment of judges. He is happy with the outcome of the Supreme Court Advocates-on-Record Association case, which was decided in 1993, which made a collegium of judges, headed by the Chief Justice of India, enjoy primacy over the executive in the matter of appointment of judges.

Khosla points out that the collegiums advice is not binding on the executive for the first time, but if the advice is repeated after a unanimous decision by the collegium, then it ought to be respected. Many would disagree that this singular feature of the appointment process provides the necessary checks against arbitrariness. The system of collegium itself has come under criticism for its bias and prejudices, but Khosla has avoided discussing this, probably for space reasons.

He discusses the issue of judicial activism in a nuanced manner. According to him, the constitutional text establishes and envisages an extremely powerful Supreme Court, which is both an appellate and a constitutional court. He rebuts the argument that the Constitution recognises the supremacy of the Constitution as a dues ex machina, for there is disagreement on what the Constitution says, and not the supremacy of the courts.

In another chapter, he disagrees with the view that we have an activist judiciary merely because the courts appear to be taking on the roles of the executive. A study of many cases has convinced Khosla that the Indian judiciary follows a conditional approach while adjudicating social rights cases involving the non-justiciable Directive Principles of State Policy. That is, the court steps in if a social welfare scheme, which has been initiated, is not being implemented appropriately.

The chapter on Separation of Powers concludes with the significant observation that the Constitution is striking insofar as it mandates an internal separation of powers within all the three traditional branches of government, and in this way shapes the institutional dynamics of its democracy. Khosla explains adequately the internal separation of powers within the legislature and the executive but assumes rather naively that the collegium system can achieve internal separation of powers within the judiciary. On other issues, Khosla makes passing but provocative comments. Take for instance his position on Article 370. He says Article 370(3) was drafted to provide an exit route for the State of Jammu and Kashmir, to constitutionally enable it to disembark from the Indian ship. The existence of Article 370, therefore, is meaningful for the reason that it confirms the States place in the Indian Union, he suggests, and adds that without it nothing binds the State to the Indian Union.

Khosla makes a marvellous contribution to the understanding of caste in Indian jurisprudence. He answers in clear terms the simple question whether the Constitution prohibits the use of caste in all circumstances. Some scholars and some judgments of the Supreme Court have held that the Constitution is caste blind and that caste cannot be used in any form whatsoever. But Khosla makes a subtle distinction, saying the Constitution is asymmetric towards caste: it rests on the distinction, between benign and invidious discrimination.

Again, he makes a subtle criticism of the Supreme Courts judgment in M.R. Balaji vs State of Mysore (1963), which held that reservation should never cross 50 per cent, for no exception can be so large as to swallow the rule. The Balaji court viewed reservation as an exception to the general guarantee of equality, whereas the proponents of substantive equality do not see it as an exception. To him, Balaji failed to notice the asymmetric principle and walked down the rule-exception (exception proves the rule) path. The 50 per cent limit continues to bind the Supreme Courts decisions on reservation, and the legal controversies over this court-imposed arbitrary limit have not yet been resolved even though in subsequent cases after Balaji the court recognised the asymmetric principle, without actually calling it so. Khosla explains that the 50 per cent rule is an attempt, albeit arbitrary, to preserve the distinction between benign and invidious discrimination. Anything beyond this limit raises the suspicion that the form of discrimination must be invidious, he clarifies.

Could the Supreme Court have approached the issue differently? Khosla suggests that the judiciary could have taken on the burden of judging backwardness and assessed whether the thin distinction between benign and invidious discrimination is preserved in each case. He is dissatisfied with the Supreme Courts judgment in the Mandal II case ( Ashok Kumar Thakur vs Union of India, 2008) because it failed to follow the Aristotelian notion that like cases be treated alike and different cases be treated differently. In this case, the Supreme Court upheld the reservation for the Other Backward Classes (OBCs), the Scheduled Castes (S.Cs), and the Scheduled Tribes (S.Ts) in educational institutions. It was erroneous, he suggests, to have permitted the same special treatment for the OBCs on the one hand and the S.Cs and the S.Ts on the other without any historical or empirical basis. Khosla is concerned that the present scheme of affirmative action is going beyond the original constitutional ideal of transcending caste and that the Constitution is being understood as a document that grants equality through caste.

Basic structure doctrine

In the last chapter, Khosla raises an interesting question, whether the Supreme Court is correct in restricting the application of the basic structure doctrine to only constitutional amendments and not to ordinary law: that is, a law made by Parliament or a legislature can violate the basic structure of the Constitution but not an amendment to the Constitution. This bizarre conclusion was the basis of the Supreme Courts decision rejecting Kuldip Nayars petition challenging an amendment to the Representation of the People Act removing the residence requirement for candidates contesting Rajya Sabha elections. He challenged the amendment Act (an ordinary law, rather than a constitutional amendment) as infringing upon the basic structure of the Constitution, which includes separation of powers.

Khosla also disagrees that power has shifted to the Supreme Court under the basic structure doctrine. The truth is that hardly any basic structure challenge has been successful, he says. This is because for an amendment to fall foul of the doctrine it must destroy or damage the basic features of the Constitution. The threshold for establishing hurt is thus high, he says.

He is right in suggesting that the basic structure doctrine represents an effort to distinguish between a constitutional amendment and a revolutionary action. It invokes the terms on which power is delegated from the sovereign people, critiquing Parliaments power to fully represent the people. Yet it suffers from a serious problem, as he explains: the sovereign people have limited institutional means for voicing their preference for constitutional change. It is not clear whether Khosla will endorse, like the senior advocate and social activist Prashant Bhushan, the demand for referendums on various intractable policy issues.

He admits that the basic structure doctrine rests on abstract principles, which are difficult to identify with particular provisions of the Constitution, and that is why the courts have been unable to strike down any amendments to the Constitution on the grounds that they violate the doctrine. Another reason he cites is the Constitutions increasingly asymmetric character, which has made it more difficult to determine and thus notice departures from the basic structure.

Khosla believes that asymmetry has helped cater to claims for recognition and address serious social problems. But he warns that its widespread use could dilute national citizenship, create compulsory identities and inhibit an understanding of which first principles govern us. The author realises that he may have exaggerated asymmetrys implications but cautions us from ignoring it altogether.

On the whole, the author and the publisher deserve to be congratulated on bringing out a lucidly written, easily digestible, yet comprehensive book on the Indian Constitution. The list of references and the special section on further reading appended to the book will help interested readers explore the subject further. The price, too, is an incentive for anyone who wants to possess a personal copy.