The complex Constitution-power interplay in ‘The Indian Constitution’ by Gautam Bhatia

Gautam Bhatia’s book on the Constitution examines its approach to power; more specifically, to the exercise of power in India’s federal structure of governance. There are two aspects to Bhatia’s exploration: one, through the history of cases wherein the Executive’s power to decide or interpret was challenged; and two, searching the text of the Constitution itself to ascertain how it interprets the extent and limits of the power the State can exercise. Bhatia also uses historical records to study how a particular text evolved before its final appearance in the Constitution. In addition, he brings comparative insights from the constitutions of other nations. The result is a rich interplay of arguments and interpretations derived from verdicts delivered by the high courts and the Supreme Court.

The author assures that the Constitution offers vast opportunities for interpretive contestation. At the same time, he suggests that the text of the Constitution carries seeds of a ‘centralising’ tendency, i.e. making the federal structure of the country somewhat sloped towards a unitary form of governance. Over the decades, the verdicts given by the highest court have boosted this tendency. These verdicts have served as ‘inflection points’, Bhatia says. This is a matter of deep concern for him, given that the Constitution has rather limited room for people’s participation. This has been noticed in several cases pertaining to environment issues. In the democratic system that the Constitution upholds, people’s role is largely confined to periodically delivered election verdicts. Voters elect their representatives and hand over the power to decide on various matters to the leaders they have chosen. Most people may see nothing strange or problematic in this. Gautam Bhatia makes us question this complacent view.

In the last chapter of the book, he presents a picture of ‘what might have been’ an improved text had Gandhi’s concerns and ideas for wider and continuous participation of citizens been taken into account. This is a valid wish, and one wonders how far we can go into history to find answers that might satisfy someone who feels disturbed by the silences that the Constitution accommodated on matters pertaining to the decisive exercise of power.

The anxieties that might have framed the text at the time it was composed are not unknown to us. In fact, they dogged political consciousness for a long time after Independence. That is why national integration became so emotive an issue, and it enabled rival ideologies to claim tighter security of integration in order to woo the voter. And this process has not stopped. Even as the nation seems strong and determined to fulfill people’s aspirations, it routinely entertains questions about decisions taken by states on matters such as languages taught at school.

The book has come at a time when public interest in constitutional values is deeper than it has been before. Of course, these values have been taught to generations of children. The loud debates that countless families watch every evening on television refer to these values. One can’t escape the feeling that routinised discussions of values like equality and justice have had a numbing effect. The Preamble contains them all, and we tend to believe that fundamental rights safeguard them. Gautam Bhatia’s book takes us into the real world of disputes and debates concerning these values. He takes up several major disputes over the substantive value of civic rights that have arisen in India’s journey as a democratic republic.

Certain key verdicts of the recent past have made people curious to know how a Bench takes a decision when the hope of justice is rooted in public perceptions. The Ayodhya case was one instance. Public interest in the norms and procedure followed for the selection of individuals for key decision-making positions is also high. Then there are debates over Centre-state relations that impinge on nationhood. The average citizen is unsure what federalism means in the context of national identity. The current debate concerning the teaching of languages in schools has revived long-buried questions. The impending prospect of delimitation has contributed to the tension although the two issues are not related.

For the younger generation, many such debates arouse astonishment that they still exist and they provoke confusion over the choices available for resolving them. This broader context makes the book both timely and attractive. Fortunately, it is written in an engaging style. That does not mean that the reader will not have to exert in order to appreciate the author’s own position and worries. Some of the worries are widely shared today although not everyone is as aware of their causes as he is. There is no doubt the book will find a readership far wider than the community of those who deal with law and governance.

— The writer is former director of NCERT