07/06/2019 Delivery | Westlaw India

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Content Type: Westlaw India
Title : The Constitution of India: A Contextual Analysis
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Number of documents delivered: 1

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Public Law

2019

Publication Review

The Constitution of India: A Contextual Analysis

Arun K. Thiruvengadam

Reviewed by Chintan Chandrachud

Subject: Constitutional law

*P.L. 431 In the exhilarating, fast-paced world of Indian constitutional law, timing is often everything. A book
completed in September 1972 would have correctly identified that Parliament lacked the constitutional authority
to repeal one or more fundamental rights (Golak Nath v State of Punjab AIR 1967 SC 1643). Assuming an
eight-month publication timeline, that statement would have been inaccurate at the time of publication—with no
less than a 13 judge panel of the Indian Supreme Court intervening to alter the constitutional position
(Kesavananda Bharati v State of Kerala AIR 1973 SC 1461). A book describing the "new" system of judicial
appointments put into place in early 2015 would have, courtesy of the Supreme Court’s decision in the "Fourth
Judges Case"(Supreme Court Advocates on Record Association v Union of India (2016) 4 SCC 1), described an
appointments process that was never implemented.

In many respects, December 2017—the publication date of The Constitution of India: A Contextual Analysis —is
analogous to September 1972 and April 2015. Within months, the Supreme Court decriminalised the LGBT
community (overturning its own decision from 2013 in Navtej Singh Johar v Union of India WP (Criminal) 76 of
2016, decided on 6 September 2018); rejected a long-standing constitutional challenge to "Aadhar", the world’s
largest biometric identification system (Justice K Puttaswamy v Union of India WP (Civil) 494 of 2012, decided on
26 September 2018); struck down the criminal offence of adultery (Joseph Shine v Union of India WP (Criminal)
194 of 2017, decided on 27 September 2018); and lifted a restriction on the entry of women into the Sabarimala
temple in Kerala (Indian Young Lawyers Association v State of Kerala WP (Civil) 373 of 2006, decided on 28
September 2018).

However, Arun Thiruvengadam—a familiar figure in the Indian public law community—avoids the timing trap in
ways that most scholars would struggle to do. This is a product of the book’s methodology and approach. While a
large proportion of scholarship in the field is doctrinal and focuses on the decisions of the Supreme Court (and to
a lesser extent, the High Courts), Thiruvengadam’s book is unapologetically light on doctrine. Instead, it focuses
on the "political bargains and extra-legal developments" (p.ii) that have influenced constitutional discourse in
India over the years. The book remains interested in the socio-political environment in which significant
constitutional decisions were made (including the strength of popular mandates, the institutional pressures at
play during relevant periods and the impact of social mobilisation) rather than in the content of the decisions
themselves.

Another feature which distinguishes the book from much of the existing scholarship is that rather than cleanly
separating constitutional choices from those made pre-independence, during the Constituent Assembly debates
and after the Constitution was enacted, this book conceives of them in a continuum. This offers *P.L. 432 a more
coherent and sophisticated account of the reasons why the framers designed provisions in one way rather than
another, and in some cases why the courts adopted one interpretive approach over another.

For example, key elements of the Westminster model of government that existed prior to independence were
maintained to ensure continuity and avoid "drastic experimentation with institutions" (p.47) in a time of crisis. The
Constitution entrenched a federal system with a unitary bias that had its origins in the Government of India Act
1919. There were also some marked discontinuities between choices made before and after independence. The
framers made the audacious decision of extending the franchise in circumstances where only a fraction of the
population could exercise it before independence. Separate electorates for religious minorities were abandoned
with a view to avoiding the fragmentation and splintering of interests that they precipitated. The inclusion of an
enforceable chapter on fundamental rights was a significant departure from the British conventional wisdom of
the time that rights were best protected through the political process rather than the courts.
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These methodological decisions bear implications for how the book is organised. The seven thematic chapters
include chapters on the origins and crafting of the Constitution, the executive and Parliament, federalism and
local government, constitutional regulation of India’s multiple identities, and constitutional change. Fundamental
rights, directive principles and the courts—subjects that occupy reams of paper in other texts—are squeezed into
a single chapter of the book. Each chapter follows a linear progression, beginning with the relevant constitutional
provisions, moving to the constitutional history underlying those provisions, followed by an analysis of how those
provisions have been applied in practice.

The chapter on "Technocratic Constitutional Institutions" is perhaps the most important chapter in the book. The
success of India’s constitutional democracy is attributable in no small measure to the Election Commission. For
the foreseeable future, every national election cycle conducted by the Commission will be the largest electoral
exercise in history. Yet, the role of the Commission is often underplayed, and sometimes entirely ignored, in the
scholarship. Thiruvengadam analyses the functioning of the Commission in three historical phases. In the first,
the Commission worked on resolving teething problems in early electoral cycles and establishing its credibility
more generally. In the second phase, "the political culture of respect for institutional independence waned"
(p.154) and most institutions, including the Election Commission, were not spared. In the third phase, the
Commission established a number of initiatives aimed at addressing problems associated with voter registration,
candidate fraud and electoral corruption. The second constitutional institution considered by Thiruvengadam is
the Office of the Comptroller and Auditor General, which has played an increasingly significant role in promoting
transparency and accountability in recent years.

While the book is robustly reasoned, two themes that run through the book require further justification and
analysis. First, Thiruvengadam ascribes considerable importance to the economic reforms of 1991 in the story of
India’s constitutional evolution. That is a conclusion with which it is difficult to disagree in principle. However, in
expounding this argument, he references Bruce Ackerman’s idea of "constitutional moments" (p.229). The period
of reform in 1991, he argues, was *P.L. 433 a constitutional moment that resulted in considerable informal
changes to the constitutional landscape.

Ackerman’s theory of constitutional moments was conceptualised within the United States’ specific constitutional
context, with a short Constitution that is exceptionally hard to amend. According to Ackerman, during moments of
constitutional politics (in contrast with ordinary politics), citizens and public officials engage in a discussion that
produces a constitutional moment. These constitutional moments result in informal amendments to the terms of
the Constitution without formal amendments to the text. These informal amendments are authoritative and
constrain the conduct of public officials in much the same way as amendments to the text. During the New Deal
era, for example, President Roosevelt—in the knowledge that formal amendments to the text could not be
achieved—made a series of appointments to the Supreme Court that "decisively repudiated the rights-oriented
jurisprudence" (Bruce Ackerman, "Transformative Appointments" (1987) 101 Harv. L. Rev. 1164, 1166) of the
Lochner era.

The balance of payments crisis and the risk of economic armageddon were precipitated by factors that were
external to the Constitution. Unsurprisingly, the core economic reforms undertaken to bring the economy back
from the brink were themselves also external to the Constitution. In any event, to apply Ackerman’s theory of
constitutional moments to India’s reforms of 1991 would be to fit a square peg into a round hole. The Indian
Constitution is far easier to amend than the US Constitution, both in design and in practice, and is amended more
than once a year on average (see Chintan Chandrachud, "Constitutional Interpretation" in S. Choudhry, M.
Khosla and P.B. Mehta, The Oxford Handbook of the Indian Constitution (Oxford: Oxford University Press, 2015),
p.74). In fact, constitutional changes through formal amendments to the constitutional text continued to take
place contemporaneous with the reforms of the 1990s.

Second, the book references the positions taken by "supporters" and "critics" of the Indian Constitution. Although
this binary conceptualisation may have been appropriate in the early years of Indian constitutionalism, it is
somewhat jarring within the contemporary scholarship. That the Indian Constitution governs the largest number
of people in the family of written constitutions is accepted as a political fact. Given the nature and complexity of
the Constitution, there are not two mutually exclusive groupings, but multiple, overlapping ones. Scholars that
have the same view on federalism may have a different view on how the directive principles ought to be
interpreted; those that agree on the scope of the President’s powers may disagree on the appropriate extent of
the Supreme Court’s intervention through public interest litigation.

Overall, Thiruvengadam’s book is a valuable resource for students and scholars of constitutional law, especially
those keen on understanding the subject beyond the realm of the courts.

Chintan Chandrachud

Associate

Quinn Emanuel Urquhart & Sullivan LLP, London

P.L. 2019, Apr, 431-433

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