What happens when a Constitution promises rights, but the systems built around it keep concentrating power? In this episode, LAOT host Arnav Mathur speaks with constitutional scholar Dr. Gautam Bhatia about his new book, The Indian Constitution: A Conversation with Power. The book reframes the Constitution as a map of power, showing how its design and interpretation have enabled what Dr. Bhatia calls the “centralising drift.” The discussion unpacks the idea of a “Franken-Constitution,” the limits of courts and popular constitutionalism, and the unspoken “constitutional common sense” that shapes outcomes. It also asks a difficult question: can India’s Constitution still imagine a more decentralised, plural future?
Arnav Mathur: Hello everyone, welcome to the LAOT podcast. I’m Arnav Mathur. I’m a fourth-year law student at NALSAR University of Law and an editor at LAOT. It’s a pleasure to have Dr. Gautam Bhatia with us today. He is a Delhi-based advocate and a Constitutional law scholar. He holds degrees from various prestigious universities like NLSIU, Oxford and Yale. He’s authored multiple books, including non-fiction and fiction books, and most recently, he published a book titled The Indian Constitution: A Conversation with Power. This book tries to bring a new lens to analyse the Indian Constitution. The Indian Constitution is looked at as a document that creates, shapes, channels and constrains power. Dr. Bhatia asks certain fundamental questions about the structures and institutions that the Constitution creates and the web of powers that it establishes. Thank you for joining us, Dr. Bhatia. It’s a pleasure to have you.
Gautam Bhatia: Yeah, thank you for having me. It’s lovely to be here.
Arnav Mathur: Now, in this book, you diagnose the Constitution through its power map, specifically looking at the time period between 2019 and 2024 as a window to analyse its deeper structure. Now my preliminary question is why? Why this project? Why take up power as the master lens to analyze the Constitution? And why now? What did you think was a blind spot in the Indian scholarship and public debate that needed to be urgently addressed?
Gautam Bhatia: I think just to clarify at the outset, 2019 to 2024 is not really the lens through which the book examines the Constitution. It’s something I begin with in the introductory part of the book because it’s something in recent memory. And so many of the examples will immediately make sense. But the actual argument of the book is really not linked to the last five years. In fact, I want to dispel one of the commonly articulated notions that the last five or the last ten or eleven years, as the case may be, mark some kind of a rupture in the way that politics is conducted within the Constitutional scheme. I think that is not the correct way of looking at things. So, in that way, there are just some examples from the last five years that, at various points, illustrate the major argument of the book. But once you get into the actual chapters, you know, the judgments I look at can range from 1960 to 2024. It just depends on which of them actually make sense in the context of the argument.
Now, as far as why this approach and why now, the genesis of the book or the idea of the book, the origins lie in my work on the Constitutional challenge to Article 370’s abrogation by the Parliament on August 5th 2019. I was shortly after engaged on the brief, and when I examined the various legal moves that had been made, they struck me as being very evidently contrary to the Constitution. Now, whatever the court may hold is a different matter, but it seemed to me that, objectively, they are very evidently unconstitutional. But when I began to read more because we don’t normally read Article 370 jurisprudence as part of our, you know, normal work as either law students or law scholars or lawyers, I found a much more complicated picture emerged and moves similar to the move that had been made now had been made before and had been endorsed by the Supreme Court in cases prior to this case. So, it became a lot more murky. And it seemed to me that at the time of course, this is also around the time when you had the CAA and NRC protests and the farmers movement a lot of other things that implicated the Constitution, and I felt that a large part of the discourse which was that the Constitution is a wonderful document which is being let down by bad judges or judges who are either unable or unwilling to interpret it in a proper way, I found that discourse to be inadequate in really understanding what’s going on.
So, I began to investigate a little deeper, and here I found the analysis of power to be particularly helpful. It’s something that is perhaps a little new in the Indian context, but it has a long lineage, specifically in examining Latin American Constitutional history. It is a framework that has been deployed by the Constitutional scholar Roberto Gargarella. And so I found his approach quite helpful in well understanding, first of all what was happening in the Article 370 case including and up to the court’s actual judgment which came out when the book was almost done, and I had to you know add a section afterwards explaining the judgment but it fit perfectly well with the argument, and also it explained a lot of other things going on that seem to be disconnected from each other seem to be isolated but the lens of power and what I call the Constitution’s centralizing drift seemed to have explanatory power in really explaining a lot of what’s what was happening both in terms of political actions as well as the Supreme Court and the high court’s responses to these actions. So that’s why I found this approach to be helpful and useful in understanding the Indian Constitution.
Arnav Mathur: Perfect. Thank you so much. I think the most important point is that even though the starting point of your inquiry might be through the 2019 to 2024 but those are just examples and the book the argument that is being developed has a broader scope. What’s also interesting to me is to understand the connection of this book with your earlier scholarship, which is the transformative Constitution. There, you had foregrounded the document as a vehicle for social change and rights expansion. Now you analyse it through the lens of power. What I want to understand is how these two frameworks are linked to each other? Whether or not there is any linkage? Are they distinct from each other, or are they just the same? Are they just different faces of the same Constitutional story?
Gautam Bhatia: Well, I think experience makes you more pessimistic in life, and I think you can see a certain progression from 2019 to 2024, which I mean, I’m half joking, but you know, I think that in 2019, I was certainly much more optimistic about the promise of Constitutionalism. Even in the 2019 book, the transformative Constitution, I do make it clear that the judgments I consider are not all, and in fact quite a few of them are not actually good laws some of them have been overturned, some of them are no longer followed. And what I call that jurisprudence in 2019 is a contrapuntal canon so you know it’s basically it’s the cannon of case law that were it to be followed it could fulfil the Constitution’s transformative promise but as of now, even that is really you know it’s up for debate. But the central argument of the book in 2019 was that the Constitution is a transformative Constitution and transformative Constitutionalism is something that is possible and worth striving for now at that point of time, much like a lot of Indian Constitutional scholarship I was focused on the questions of rights and that’s why all of the chapters in as the Constitution concern rights you know article 14 ,19, 15 (2), 23, 21, and so on. And over the years I’ve come to come to believe that, that is a fundamentally inadequate way of looking at Constitutionalism because it tends to really decontextualize rights, depoliticize you know, where the power actually lies within a Constitution and doesn’t take into account that understanding rights or trying to make a rights-based argument without taking into account the political economy within which those rights are embedded, will lead you to all kinds of wrong and perhaps overoptimistic conclusions.
So, in that way, 2024, all of this book is perhaps a bit of a corrective to 2019. And the argument in this book actually is that, well, I don’t have a conclusion in this book, I end with a question, but the question is whether a Constitution that is fundamentally both in its design and the way it’s been interpreted over the years, centralising, whether you can ever really hope to have meaningful emancipation or equality within a Constitution that is or tends to in this manner centralized power. So, that is the question I leave readers with at the end of this book.
Arnav Mathur: Understood. It’s interesting to see the development from your previous work on transformative Constitution to this book and how power then becomes a more important and more realistic tool to understand the Constitution and its workings. Now, one of the central arguments that you make relates to something called the centralising drift, and I’d like to quote how you define it. It says that “In the seven decades of the working of the Constitution, there has been a gradual drift towards entrenching a first set of characteristics: unitary, concentrated, representative, electoral, homogeneous, and statist power on one side at the cost of: federal, distributed, direct, guarantor, plural, and individual power.” This really seems to be the central thesis of the book. Could you talk us through what this centralising drift looks like? What does it mean? What does it look like in practice? And perhaps you could identify one example of a centralising drift that we can clearly see not just in the adjudication or the inflexion points that you mentioned, but also in the text itself.
Gautam Bhatia: Well, I mean, I can give you two examples, one old one and one new one, just to sort of, you know, make the point clear.
The old one is a case which I discussed in the federalism chapter State of West Bengal v. Union of India where the union of India tries to take over certain coal bearing lands in the state of West Bengal and the question is that Entry 42 of List III of Seven Schedule which vests competence in terms of law making to both the union and the states has is at that time it was subsequently amended use the language acquisition or requisition of property. So the Union of India argues that it is invoking entry 42 of List III, and that Entry is what gives it the competence to pass this law that then allows it to acquire these coal-bearing areas. West Bengal argues that it is a federal polity and federalism means that in their individual domains, both the states and the union are sovereign. And if sovereignty means anything, it means that one sovereign cannot acquire the property of another sovereign without their consent. And so, they say that you must read entry 42 as having the words “acquisition or requisition of property except for state property.” The Supreme Court, by a 5:1 majority, rejects this argument. And they say that look at the entire scheme of federalism in this Constitution. It is clearly skewed towards the union, and if parliament has the power to create, destroy or alter the boundaries of states, it seems absurd that it does not have the power to acquire state property. So, you can see how Constitutional design, which already creates a skew in terms of powers towards the centre vis-a-vis the States, is then invoked by the court to further entrench that power. In effect, the court argues that where you have a Constitutional silence or a Constitutional ambiguity, the interpretation has to be in favour of central power over state power. So that’s one example of how design and the Supreme Court’s interpretation intersect. Now, I argue in the book that that wasn’t the only possible reading. You could have a different reading, but that’s not the reading the court adopts. The dissent does.
The more recent example is, of course, the Article 370 case. This is actually almost the court going against the Constitutional text but that’s a different debate. Where the court basically upholds the abrogation of Article 370, and the overarching logic of the court is that the ultimate goal of this Article is the integration of Jammu & Kashmir with the rest of India. But of course, the word integration is not a self-interpreting word. It has to be given a certain meaning. And the court says that the word integration actually means a homogeneous nation-state where every state has a similar relationship with the union. So, the court reads homogeneity as uniformity. Sorry, the court reads integration as requiring homogeneity and uniformity, and the court is suspicious of pluralism, Constitutional pluralism, where you know in a country as diverse as India, its ethnic, political, linguistic and cultural diversity, the Constitutional arrangements should reflect that diversity, is basically what Constitutional pluralism requires. The court is very suspicious of any kind of pluralism and therefore it actually twists the language of the of the provision in order to justify that outcome.
But the point also is that Article 370 is one of the most ambiguously drafted provisions in the Constitution. And its origins actually lie in a political compromise. So, Article 370 did not come into the Constitution as some kind of a principled commitment to regional autonomy, a principled commitment to pluralism. It came into being as a pure political compromise designed to keep the strategically important state of Jammu and Kashmir within the Union of India. And that history, which then reflects in the wording, then allows the court to really discard any arguments for founding the autonomy of Jammu and Kashmir on a Constitutional principle, and therefore, they’re easily able to then almost ignore words in the text to justify the integrative process that ends with the abrogation. So, I think these are two examples where you see the intersection of Constitutional text and design and judicial interpretation that basically leads to this centralising drift, and West Bengal was a 1962 case, 370 case is from 2023. So that’s basically how you’re looking at the beginning and the end of the Constitutional project. By the end of the course, I mean the most recent examples.
Arnav Mathur: Understood. I think it’s interesting that we can find examples from old case laws, such as the state of West Bengal, and more recent ones as well. But if I were to push the question further, to what extent do you think that this is a Constitutional choice, or to what extent is it a product of India’s political history, where historically we’ve had strong central governments, because one could argue that the Constitution was deliberately framed as a centralising document from the outset. Then how does your idea of centralizing drift then counteract with this? Because this is again what goes counter to Justice Subbarao’s dissent in State of West Bengal, and what the majority held is that you look at the initial understanding of the Constitution. So how would you counter that claim?
Gautam Bhatia: So, what I say in the book is that the Constitution is a terrain of contestation. Right? So, if you look at the Constitutional text and the history of its framing, a lot of it actually is the result of compromise. The assembly members in the constituent assembly could not agree on a range of things. Now unfortunately or fortunately, I mean depending on where you stand it so happened that Nehru, Ambedkar, and Patel were all agreed on centralization for different reasons. But you know not to put too fine a point on it, but because of really this compromise and this conflictual founding of the Constitution you know on the one hand you have centralizing provisions but then you also have you know other kinds of provisions that you know counteract or act in the opposite directions. So, in that way, as with any text, it is an open-textured document, and any open-textured document is subject to interpretation. So, in that way, if you want to as a court or as an individual or as anyone to interpret the Constitution in a way that counteracts the centralising drift, you can, and sometimes it has been done.
Now the problem, though, which I argue in the book, is that even though you have a terrain of contestation, even though you have counteracting impulses, the dominant impulse is centralisation, so that actually makes it harder to counteract, and I’ll give you an example. So, election commission’s independence, so Article 324, so it says that the chief election commissioner shall be appointed and I’m paraphrasing, shall be appointed through a law made by parliament. And until such time as parliament makes a law it will the appointment is made by the president, which basically means by the government (aid & advice). And so, in the original Constitutional text and the Constitution, actually, the original Constitution is a deeply executive trusting document, and we can discuss the reasons for that later on if you want to. But it is a deeply, deeply executive trusting document, and you can see that in a provision like this, where a body that is literally tasked with refereeing elections, where the executive’s party will be a candidate, is actually being appointed by the executive. Now, the framers evidently believed that this is a power that would not be misused by whoever was in power, and that has clearly not been borne out. And so, in the Anup Baranwal case, the Supreme Court basically says that, well, if you really go deeply into the debates, you will find that the intention was for the commissioners to be independent. Parliament was meant to pass a law guaranteeing that Parliament had not done that. Therefore, we as the court are going to set this interim arrangement up, which is actually a really terrible arrangement, interim or otherwise, of the chief justice, prime minister and LOP as the appointments committee. Now that is a complete judicial invention, and because it’s an invention, it makes it particularly fragile and pretty easy to you know just sort of do away with. So, what does parliament do it? Parliament enacts the law, which it is authorised to do under Article 324, and basically makes the Election Commission formally subservient to the executive by having a 2-1 majority. Now, of course, now you file a challenge and say this is unconstitutional because the intention always was to keep it independent but where in the Constitution is it said that the election commission has to be independent.
Compare this with for example: South African Constitution, Kenyan Constitution, they clearly have these specific chapters in the Constitution that deal with institutions like the election commission and categorically state that their independence is something that is constitutionally entrenched and we don’t have that. And again, there are reasons for that, historical and so on. We can go into that. But basically, the thing is that while any text is open textured and can be contested, there are directions in which the text points you to and as does this history. And it is much easier as an interpreter to really flow with the direction of the text than flow against it. Right? So yeah, so you can, as Anup Baranwal, you can counteract the text’s impulses. But it is obviously much harder than just saying, you know, is going with it, and I think that’s what at least partly explains, along with what I call constitutional common sense. That partly explains why such a large part of the court’s jurisprudence over the years has always, in these high-stakes cases, opted for the more centralising interpretation of the Constitution than its sort of opposite.
Arnav Mathur: Thank you so much. I’ve got two strands of understandings from this answer. One is that that the Constitution is an open textured documents with different visions and different contestations and that the interpretation for an interpreter would always be easier to go with the grain. Even though there are different sets of impulses, there would be something that is always favoured more. And I’d like to interrogate the first part of your answer in depth. Now, there’s a very evocative phrase that you use in the book, which is called the Franken-Constitution. It is a Constitutional order where, individually, the provisions seem to be reasonable. The moment you stitch them together; you end up creating a monster. Could you just explain to the listeners what this idea of Franken-Constitution is and what does it look like?
Gautam Bhatia: Yeah. So, the term is borrowed from franken state, which is a term that Kim Lane Scheppele coined, and she refers to the Weimar Constitution and basically how a provision is innocuous in its own right, but when combined with other provisions, it can really create a monster like Frankenstein’s monster and she talks about you know the dissolution of the parliament in the Weimar Constitution and all of that.
Now here, one really good example is the Maharashtra political crisis right. So it begins with of course the defections of these various MPs or well they say they’re not defecting they say they’re the real political party and now there’s a whole schedule of the Constitution that’s meant to prevent this kind of thing. But the way that you administer that schedule really depends upon two entities, two officers, the speaker of the house and the governor because the speaker is the entity that will adjudicate defection petitions and the governor is the entity that will call for a flow test or a sitting of the house. Now both of these entities are not independent. The governor is the nominee of the center and the speaker is nominee of the ruling party whichever that is. Now in this case, the Maharashtra case, the speaker’s role is like a little more complex thing which we’ll not go into because that’s a whole other thing of the deputy speaker. There’s a whole different, very specific political context there. So, the governor plays the role of calling for a floor test and knowing that a certain kind of majority is present in the house.
Along with that, of course, you have, and this is within the rights chapter, you have laws like the PMLA that basically ensure that you can under the Enforcement Directorate, the ED, which is a body completely under the control of the center, you can basically put people in custody with very little chance of bail for a good amount of time and we’ve seen that happen. We’ve also seen that what the ED has been used to do has been to go after opposition politicians. This is this is an objective fact, right? And so, you have this sort of lethal combination there where you have like weak rights protections that enable a certain kind of intimidation and blackmail of opposition politicians mixed with anti-defection that is dysfunctional mixed with like the governor’s power of calling for a floor test calling for the assembly. And each of these, you might say independently you may give some justification for that that you need X or Y, but when you combine them together you find essentially that it becomes very easy for a central government, whichever the government is this is not about a specific government, it’s just that our experiences have been with this government it is very easy for a central government to use its control over investigative agencies, to use its control over the governor and to deploy the jurisprudence of the court on rights which is a very weak jurisprudence to effectively engage in regime change in the states. We’ve seen that happen in multiple states now last 5 years.
Again, just to clarify, this is not new. The very first instance of regime change was in Tamil Nadu in 1952, when the Congress governor Raj Gopalachari again used the governor’s powers to topple the left-led coalition and bring the Congress government in. So the point is that that these are tools and weapons that are in the Constitution and have been there in the Constitution from the beginning and this is the Constitutional design, and so I think like the important thing is as a point, I want to make here is that this whole debate goes on that the present ruling dispensation wants to change the Constitution you know they want to do away with it, and therefore all the Constitutional defenders must rally around and defend the Constitution. I think that is just that; it fundamentally misses the point. And it misses the point because the question that you failed to ask is that why has every single centralizing regime in Indian history and by centralizing regime I refer to three Nehru’s regime, Indira Gandhi’s regime and Modi’s regime and of course they are written in different ways but they were all deeply centralizing regimes, they have all been comfortable with the Constitution, and they have all used constitutional mechanisms to bring about what they want to achieve. So, Nehru, of course, was amending the Constitution. Indira Gandhi was suspending the Constitution and now the present regime you have what I said a sort of combination of various sort of mechanisms. But each of these regimes has always invoked constitutional processes to accomplish what they’re doing. And they’ve been successful.
So, it’s not like Pakistan, you know, where you have army coups, where you get Constitutions replaced and new Constitutions brought in. It’s not like a country, not just Pakistan, anywhere else, it’s not a country where to get what you want, you must sort of like remove the Constitution, because the Constitution is actually a barrier. This is a case where every centralising regime has used Constitutional processes to get its way. And I think that that’s the question then we should be asking why has it been so easy? And what that says about the Constitution and not about a particular regime.
Arnav Mathur: That’s very interesting, I think. From the example that you took about Maharashtra’s episode, we can see how, uh, different strands of anti-defection law, governor’s powers, prosecutorial leverage under the PMLA act, all of them come together to produce a Constitutional order that is more than the sum of its parts. So, it’s something added on, which then is to be understood as a centralising drift. And the other interesting point is that all the centralizing regimes that we’ve had up until now always use and invoke the Constitution in some sense or the other. So, then my question then becomes from a specific example of Maharashtra to just broaden it to understand what does this idea of Franken Constitution and centralizing drift tell us about how we should study the Constitutional design? Should we should we be less focused about isolated provisions? Should we look at more of their interactions? And if the Constitution itself is this favouring to has a centralizing drift, what can scholarship contribute to? What can the court do in these situations?
Gautam Bhatia: Well, I mean, I think the first thing is that I don’t think that, so the book, of course, you know, is something that is focused on courts because it’s an illustration of the way courts have acted and have sort of contributed to the centralising drift. Where I don’t think the conversation should be about courts because I don’t think ultimately the courts are, in any way, you know meaningful actors in counteracting a centralized interest and I think that the evidence for that has been abundantly clear over the last 75 years. And like I said almost the constitutional common sense about that the fact that centralization is the way we have to go and you see this again in judgments as far back in 1960s and still continuing. So I don’t think that the courts are really relevant actors in this conversation and I think you have to also look at compositions of the judges like you know where they come from. I think it’s like, it’s sort of idealistic to hope that judges will be engaged in counteracting centralizing drift because I think that the their own positionality makes centralization a much more attractive proposition to them than the opposite.
So, with that said, I mean, the argument in the book is that as long as you have this kind of a Constitution with these kinds of provisions, it’s very hard to really counteract that. Now, can popular constitutionalism, or what some people call insurgent constitutionalism, play a part in some way? I don’t know because I think you haven’t seen it happen yet. I think interestingly, we did see, during the CAA-NRC protests we saw the invocation of Article 14, the protesters and I think for me that’s really very interesting because as a constitutional lawyer you know Article 14 is a parchment barrier, it’s one of the most deferential standards in Constitutional law, and it is very unlikely that you can make a successful article 14 argument in a court of law against the CAA-NRC, but nonetheless the protesters were giving it a much more capacious and a much more broad and generous meaning.
Now, the problem, of course, is that ultimately you can give whatever meaning you want to the Constitution. There is only one institution that has the coercive power at its back to make its interpretation actually the interpretation that can then be backed up by state force, and that’s the court. So, in that way, I think there are limits to what insurgent or popular constitutionalism can achieve. Of course, in the long run, no court can really afford to be too far removed from what it feels public opinion is, you know. So, of course, like it can shift things. But I think that this that’s a very difficult thing to rely on.
And I think also you know there’s a great paper by Kailash Srinivasan on the legal form.blog which was published soon after the CAA-NRC protests, which argues that relying on the language of rights itself you know has its limits and beyond the point if you have a popular movement and your claims are on behalf of a movement of people, then the language of rights often becomes both depoliticized and constraining. So, I think there’s also a question to be asked whether these mechanisms that the Constitution sets up are themselves ultimately going to constrain any movement towards emancipation or equality, and that therefore any such movement has to be conducted not contra the Constitution but outside of that framework, is a question that’s worth considering.
Arnav Mathur: All right. So, there are two things to note here from what you have mentioned. First is the limits to what the courts can achieve in terms of the incentives that they actually have to go against the grain and to promote an alternative view. And the other thing also to note is the limits of insurgent constitutionalism and the limits to when popular activists invoke the constitutional language. There also you need to understand that there are certain limitations within it. Now, a related point that you mention in your book, which you’ve mentioned previously as well, is something called the “constitutional common sense.” This relates to a set of assumptions beliefs and ideas about how the Indian Constitution organizes does organize power and should organize power. So, both of them, and this is also something that is inarticulate. It’s a premise that is not that is widely shared but it’s also internalized. Therefore, to understand it, you need to literally excavate it. Could you first unpack the most consequential constitutional common sense that is present today for us?
Gautam Bhatia: Yeah. So constitutional common sense is not one thing. It’s a range of unspoken beliefs and convictions. And much like common sense, you can’t normally reduce it to one thing. And you know, in the Indian context, I think there is a constitutional common sense towards centralization and the way it plays out, I’ll give you a tangible example, and this is again drawn from the Article 370 case, because I think that that case really reveals a lot of these things in a way other cases perhaps you know don’t. Now, in the Article 370 case, one issue was that there were two Constitutions: the Constitution of India and the Constitution of Jammu and Kashmir. And one key issue in the case was the relationship between these two Constitutions. Now, the idea that in a federal polity you can have two Constitutions, a Constitution of the federation and one of the state and that there is no hierarchy between these two Constitutions, but that they are supreme and sovereign in their respective spheres, is something that is very mainstream in both federal theory and federal practice. Many countries have this arrangement. Well, of course, yes, in terms of matters concerning the federation, the federal Constitution is what prevails, whereas in domains concerning the state, the state Constitution will prevail. And so that’s something that is completely normal.
In this case, it was an argument that was impossible to make because you just could not argue that the two Constitutions were occupying a position of complementarity. There was this ironclad assumption that the Indian Constitution is supreme, and there’s a hierarchy between the two. On many occasions, the Chief Justice, then Justice Chandrachud, would keep saying, “Oh yeah, but the Indian Constitution is supreme.” he would not provide any evidence for this historical, textual, structural, or otherwise. This was just an assertion that foreclosed any possible argument to the contrary. So, this is an example of Constitutional common sense that if you ask someone, okay, why explain why these two Constitutions cannot be actually complementary, you won’t actually get a reason grounded in, like, the law or the history of the Constitutional scheme. It’ll just literally be an assertion. And that’s an example of constitutional common sense, a certain idea of the kind of polity India is where again you cannot have Constitutional pluralism where you know state constitutions in their own domains can prevail. So it’s a constitutional common sense and you find that that in other areas and it’s a term that I use in this book but other scholars have used similar terms: constitutional culture professor Cheryl Saunders in Melbourne and David Kenny. And there’s many scholars have made the argument that it’s not just norms, doctrines and so on that govern Constitutional interpretation but a lot of it is actually unspoken agreement between the practitioners of Constitutional law about what kinds of arguments can and cannot be made which you will not find written down anywhere.
Arnav Mathur: Right. That’s interesting. You also mentioned the 370 case. So, my question is, what can you do about the constitutional common sense? Say you’re arguing in front of the court, where you know that this is something that, firstly, you have to recognise that this is a constitutional common sense that everyone is running on, but then, once you identify it, can there be something done about this Constitutional common sense, or do we just have to live with the reality?
Gautam Bhatia: Well, unfortunately, the point which you identify is far too downstream, right? So, at this point in time, it exists as the sort of encrusted thing that you can’t really shake through reason or through argument. It’s just there. Now, like with any other thing, changing common sense is a generations-long process, right? So uh so like to sort of create an alternative counter you know again, insurgent common sense which is actually that the Indian Constitution perhaps is more accommodating to decentralization than otherwise thought, is just I mean you that’s the work of generations right. So it’s not going to happen in an argument in court that’s it’s too late by then because at that point you are operating within that field of common sense you’re not operating outside it understood.
Arnav Mathur: Another thing Dr. Bhatia about Constitutional common sense itself. Now we in our current vocabulary have this term “constitutional morality.” Now it’s become quite popular through court judgments and through academia as well. Conceptually speaking, how is Constitutional morality different from or similar to Constitutional common sense? Are they even related?
Gautam Bhatia: No. There’s no connection between these two concepts. I mean, constitutional morality is the term that’s used by judges, sometimes by lawyers, and by legal scholars to say, okay, there is a set of principles underlying the Constitution which govern its interpretation. So, for example, you know federalism as an idea that you have to have a centre and states or secularism or equality. So, they’re just like normative principles that structure the Constitution. But often you will see that these are pegged at level of abstraction where it’s not very helpful right so they can’t really help you in resolving a particular dispute. Of course, they’ve been used and deployed in cases like Navtej Singh Johar and so on to achieve progressive outcomes, but I think they can be equally well deployed to achieve outcomes you don’t like because I think they operate at level of abstraction that can be put into the service of any kind of concrete conclusion. It’s also perhaps why you don’t that being used too often these days like it’s not really a big thing these days.
Arnav Mathur: Yeah. Okay. Understood. Now we’ve discussed about the Constitutional centralizing drift. We’ve discussed about the Franken Constitution. We’ve also discussed the constitutional common sense that we have. But all of them, and this is something that you relate to in your book as well, relate to the State’s power. And the Constitution is very detailed in how the State’s power is to be exercised or constrained. However, the Constitution’s largely silent about when it comes to questions relating to private power. Now this is something that you contrast with Ambedkar’s States and Minorities drafts, where he explicitly wanted the Constitution to protect people not just from the state but also from private domination. Now, given the current political situation, if we make a reasonable assumption that a constitutional amendment to introduce such provisions is off the table, if we run with that assumption, what would you think is the best interpretative route for the Indian Courts to address this part of private power? So how do the courts then manage these questions?
Gautam Bhatia: Well, first of all, I don’t trust the Indian courts to really make any kind of reasonable judgment on, you know, the nuances involved in private inequalities of power. I think, in fact, it would be a disaster for that to happen because you would have a lot of judgments that would just completely, whether wilfully, just by ignorance, misunderstand and misinterpret all of this. And I think, just to look at it, you can see that Supreme Court’s judgment in Kaushal Kishore, which you know purports to extend the part three to private parties, is the most incoherent and sloppily reason judgment that you will find in the last 5 years because they just completely failed to grapple with the issues that arise when you do that. So, I don’t think that the courts even should be getting into this. They should stick to their job, which is, you know, giving people bail, which they can’t do. But they shouldn’t get into stuff that they are not equipped to really you know deal with.
Now, I think the larger issue again is that there is a reason why constitutions predominantly deal with the state, and that is because the constitutions are really premised on something that has been in political economy called the separation of the political and the economic. Which is to say that the constitutions that you know, constitutionalism as a discipline, along with written constitutions, come into being alongside the development of capitalism as a system of social and economic relations. And one thing that capitalism depends on is separating the economic and the political. So, the economic domain is something that is outside the realm of political contestation, and so private power in that sense is placed in a depoliticised context.
So, ultimately, constitutions really are not designed to deal with that because the moment they start dealing with that, you will find an unravelling of the entire political economy. So, for example, if tomorrow you want a constitution to deal with private economic power, then, for example, let’s take a look at what that will do to housing, right? So many of the Constitutions have a right to housing. Now, what the courts have done is they have interpreted this right as being a one of progressive realization which means that I don’t have a right to a house right now but I have a right to the government putting into place some kind of a plan to at some point make housing accessible to me which is completely unenforceable right and so ultimately if you were to genuinely grapple with private power you have to begin by for example decommidifying stuff like housing food and so on, which obviously you can’t do because that is effectively adopting a whole different economic system.
So, I think ultimately constitutions are just limited in what they can do in terms of dealing with the various kinds of inequality of private power that are there in our in our you know in our society. Now, of course, they can do something, so they can, for example, outlaw untouchability, they can outlaw forced labour, they can outlaw private discrimination, and that is there in our Constitution, and that just requires a certain kind of enforcement, which again, you know, we’re not having right now.
Arnav Mathur: Understood. You started off with talking about how there’s a distrust of courts handling these sort of issues and the idea of depoliticization of private power. But then my question relates back to Ambedkar’s States and Minorities draft. How did he envision a Constitution that could deal with both the State’s power as well as private power?
Gautam Bhatia: Well, he began by proposing basically state run or what he thought was state socialism, but I think what you would actually now look at as state run capitalism, right? So the state controls the the sort of commanding of the economy but he wanted to have it constitutionally entrenched. But then at some point he says “no no” like we can’t do that because every generation must decide its own economic past, that goes out of the window. He also wanted to ensure that the individual worker would be protected from the employer but he doesn’t really clarify what he has in mind because if what he has in mind is a minimum wage you know or just you know basic labour right protections, then fine you have labor law. So, you know, at best, you can have an incremental improvement if you entrench those rights constitutionally in the sense that they’ll be harder to derogate, but that doesn’t really deal with private power. That just mitigates some of, well, let’s just say it makes private power more humane, you know. So, it’s a bit like you have a bulldozer destroying a house. You either throw some grains of sand to sort of make it slow down or you sort of destroy the bulldozer, right? So just like these kind of things, minimum wage and all, is just like throwing a bit of sand in the in the bulldozer’s wheels and perhaps making the destruction more humane but you’re not really dealing with private power in any meaningful way. So, I think he had a very narrow understanding of even if the Constitution would deal with that, what it would do, and again, there are reasons for that. I mean, obviously, there are historical reasons why he wanted it to take a certain shape, which are not particularly relevant for the discussion here.
Arnav Mathur: I think it’s interesting to compare and contrast the different visions of constitutional making as well. And this brings me to one of the most fascinating parts of the book for me personally. It was the interlude where you try to recover what you call “yesterday’s tomorrows.” For NALSAR students, we would probably refer to it as the “Road Not Taken in Constitutional Making.” It’s, in fact, an elective for us. So, you look at different moments like the 1977 post-emergency window and the alternative draft Constitutions. Why do you think it’s important for us to visit these submerged alternatives now, and how do they reveal the different parts of the Constitutional power map?
Gautam Bhatia: Yeah. So, I think that one the interesting thing that they reveal is that the arrangement that we have right now is not inevitable. There were alternative paths. In fact, it’s very interesting you bring this up because, in fact, today I began reading a book called Underground Asia, which is actually about various revolutionaries in various Asian countries in the 1920s. And how, as part of their national liberation struggles, they were able to imagine a future without nation-states. So, M.N. Roy is one of those who are also mentioned in my book. So, in that way you know constitutions are like really hitched to nation states and you know nation states we can talk about that, but it wasn’t always the case and if you look at you know some of the radical experiments that were being done in the princely states in the 1920s, you see experiments with a very kind of decentralized pluralistic kind of you know governance structure.
You see similar experiments in 1947 to 50, M.N. Roy’s Gandhian Constitution, lot of things and then not so radical but when Indira Gandhi’s emergency was defeated, then there was this brief moment of reckoning with what had happened because Indira Gandhi had not only used the Constitution’s centralizing provisions, she had also added more of them and for the first time the you know you could see the tangible actual dangers of that kind of approach to you know just governance. Then there was, of course, the 44th amendment, which sought to undo some of the more pernicious effects of Indira Gandhi’s centralisation. So, there was there actually was I think a moment where it was possible to have a national debate on whether this centralizing Constitution has served us well, and if now it’s now been 25 years you know should we still be going with this. But we again missed that bus because then there was sort of very partial kind of like roll back and many of Indira Gandhi’s centralizing provisions were left intact and nothing of the original Constitution was really undone.
So, in that way, I think there were these three moments in history where we could have experimented with other ways of organising our society. But you know and just I think excavating them is interesting because then you see the possibilities and the chapter itself is borrowed from this book called “yesterday’s tomorrow” which is you know a book that really deals with uh many of the historical points of divergence in of the global anti-authoritarian left struggle for freedom and equality and at points at which actually there could have been a non-Stalinist road, you know, a non-authoritarian road, but each time a choice was made. But the point of showing that there was a choice is to show that, you know, it was something that was contingent, and that I think shows that no human arrangement is permanent and no human arrangement is natural in that way.
Everything is the product of human agency and human choice. Of course, subject to the structural constraints that are there at any given time. But human agency always has a part to play in the social arrangements we find ourselves in and that’s sort of the point that of that chapter.
Arnav Mathur: Yeah, that’s very amazing because even when I was reading the chapter, these “departure points” that you pointed out, if these departure points or these ideas were institutionalised, they would have bent the web away from the centralising drift now, and the current reality would be different, or not. And this is something that needs to be excavated and theorized about. This is a really interesting part in the entire context of looking at power as a theme.
Now, the last question that I have for you today is I think something that you’ve answered throughout your all of the answers today. I understand that this book is just a starting point for a conversation. It’s just a lens to look at the way Constitution organizes power. It’s not a blueprint or a prescriptive book, but the question is more idealistic, in the sense that can a decentralising power map exist or be pursued within this text, given the baggage of the precedents that we carry now? Can we do it now? Can we do it in the future? And if your answer is yes, then how do we do it?
Gautam Bhatia: Yeah, I think within this text, you again, like I don’t really answer that question in the book. I’m quite sceptical. As both in my experience as someone who engages with the Constitution at a theoretical level and also in Courts now for a while, I think that I’m quite sceptical. I think that you know it’s like something that is very hard to do and it’s just something I think that constitutionalism itself is really not equipped to. Because as I said, constitutionalism is really comes into birth with the advent of capitalism and they both need like a nation-state to sort of like organize themselves and as long as you have that premise you will always have this kind of centralization going on. So, I think that it’s quite difficult and we need to sort of fundamentally rethink our constitutional arrangements and ask ourselves first of all what kind of society we want and then, you know, ask ourselves what kinds of arrangements will govern that society. The first question I think is not, can we alter or interpret the Constitution to achieve X or Y? I think the first question is to ask ourselves is that what society do we want and then what kind of you know institutions will really serve that goal. Uh, but again, that latter question is not something that an individual thinker can provide a blueprint for, you know. So that’s something that you know can only happen in the doing of it.
And I mean this the same person who recommended to me that yesterday’s tomorrow’s book also recommended to me this great piece called Forest and Factory which makes this point that that you can’t have a blueprint, it has to come through that sort of conversation and it has to emerge out of that sort of equal conversation and so I think like that is really for me the conversation worth having and not so much like how do we interpret the Constitution somehow to get more progressive outcomes because I think we have tried that and it’s not worked and there are reasons why it’s not worked. It’s not to do just with judges not getting it. I think it’s the reasons are deeper and more structural and you know I’ve tried to sort of highlight some of those today.
Arnav Mathur: Thank you so much. I think this book and this conversation is very timely and critical interrogation of how the Constitution should be. It’s also gives you a peak into what the scholarship might be missing and where we should put our focus. So, as a conversation starter, as a lens through which the Constitution needs to be viewed, power seems to be one of the most important parts. And of course, we’ve discussed the various different themes of your books as well. The centralizing drift, how individual provisions can sometime create something more bigger which is the Franken Constitution and also how the questions of private power need are not always best be trusted to be delivered and interrogated by the Indian courts. We’ve also looked at what by far has been the most interesting part about how we have to understand that the Constitutional reality that we have today is not inevitable, and that fact also can give us some indication as to how the conversation should move ahead. So, thank you so much, Dr. Bhatia, for coming here, for writing this book, and for discussing this with LAOT. We’re always grateful to have you on the podcast. Thank you.
Gautam Bhatia: Thank you. My pleasure.
[Ed Note: The Podcast has been conducted, edited and transcribed by Arnav Mathur from LAOT team and published by Tamanna Yadav.]
