The Indian Constitution through the Lens of Power – I: The Union and the States

—Gautam Bhatia, Advocate, New Delhi and independent legal scholar

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In his book, Latin American Constitutionalism, Roberto Gargarella calls upon scholars of constitutional law to focus upon the “engine room” of the Constitution: i.e., that part of the Constitution that is concerned with the shaping, wielding, and constraining of power. Drawing a distinction between a Constitution’s “dogmatic” element (i.e., the Bill of Rights) and its “organic” element (i.e., the division of power), Gargarella argues that even expansive – and transformative – bills of rights may fail to make a Constitution truly transformative if it continues to concentrate power, and resist its dispersal or democratisation.[1]

Debates around the nature and identity of the Indian Constitution – and its transformative (or conservative) character have tended to focus on Part III of the Constitution, or the bill of rights (what Gargarella would call the “dogmatic” element of the Constitution). Much of the analysis is important and significant in its own right, but also, is often siloed from debates around other parts of the Constitution (such as federalism, legislative-executive relations, rule by decree and so on).

Following Gargarella’s framework, in this six-part blog series, I will examine the Indian Constitution through the lens of power. To do this, I have identified six axes of power, which I will discuss in each post: the union and the states, the legislature and the executive, homogeneity and constitutional pluralism, electoral and guarantor institutions, representative and direct democracy, and the State and the individual. My argument will be two-fold: first, that Indian Constitution is a terrain of contestation, where different – and often irreconcilable – visions of power are present, and in tension with one another; and secondly, that a survey of constitutional jurisprudence over the seven decades of the working of the Indian Constitution reveals a centralising drift: i.e., a drift towards a centralised, Statist, homogenous, and executive-oriented vision of power, at the cost of a more decentralised, dispersed and plural vision. This drift is a function both of the constitutional text itself, but also the result of various “inflection point” judgments of the Supreme Court, where when the Court was faced with an interpretive choice between competing visions of power, it chose the centralising vision, and foreclosed the alternative.

        The Federal Axis

This post will briefly consider the first axis of power: the federal axis. Article 1 of the Indian Constitution stipulates that India shall be a “union of states.”[2] Formally, therefore, India is a federation. It is also, however, a federation with a pronounced “central bias.” The union legislature can alter state boundaries and create entirely new states[3], residuary legislative and executive powers lie with the union[4], the union executive can invoke Emergency Powers to dismiss state governments altogether[5], and so on.

Despite this, however, the Constitution inevitably contains gaps, ambiguities, and silences. The question then arises: what – if any – relevance does the “central bias” (as a description of the constitutional structure) have on the normative question of how the Constitution ought to be interpreted in federal disputes?

This question was answered by the Indian Supreme Court in an early judgment: State of West Bengal vs Union of India (1962)[6]. The question in that case was whether the Constitution placed an implied bar upon the union from acquiring state property (in this case, for the prospecting and mining of coal). The states argued that the Constitution’s federal character meant that states were sovereign in their own domains, and one sovereign (the union) could not compulsorily acquire the property of another sovereign (a state).

A majority of the Supreme Court rejected this argument, holding that in its history and origins, Indian federalism differed from US federalism – the states were not independent entities before Independence. The Court then relied upon the “central bias” in the Constitution’s structure to advance an interpretive claim that states could not claim sovereignty within their respective domains.

State of West Bengal vs Union of India articulated what I call a “centralising approach to Indian federalism” which, other than a few exceptions down the years, has largely been followed by the Supreme Court. This centralising approach holds that textual or structural ambiguities within the Constitution are to be resolved in favour of union power, and against state power. Proving Gargarella’s point about the linkages between the dogmatic and organic parts of the Constitution, this centralising approach has been used in a variety of domains, to uphold union laws and action: in particular, for example, in upholding anti-terrorism laws – with far-reaching consequences for civil liberties – in the teeth of a federalism-oriented constitutional challenge[7], and the blurring of legislative and executive functions through “constituency development fund” schemes.[8]

However, as a strongly-reasoned dissenting opinion by Justice Subba Rao in State of West Bengal vs Union of India demonstrated, the centralising approach to federalism wasn’t the only road open to the Court. Subba Rao J found different lessons from colonial history, noting that the existence of strong provincial governments in the colonial era indicated the existence of a “federal situation” at the time of independence[9]; he also made a moral claim, holding that a heterogenous and diverse nation needed strong federal arrangements that would do justice to its diversity. He, therefore, presented an alternative – a federalising approach to the question of Indian federalism.

Contestation around the federal axis of power continues to be a defining feature of Indian constitutionalism: at present, the Supreme Court has reserved judgment on the allocation of powers between the union and the national capital territory of Delhi, where the nature of Indian federalism has been at the forefront; cases pertaining to the constitutionality of a law that converted the state of Jammu and Kashmir into a centrally-controlled union territory are pending before the Court, and the role of union police and law-enforcement agencies in (opposition-governed) states is coming under increasing scrutiny. In all these cases, there is the long shadow of the Supreme Court’s 1962 judgment, and the “centralising approach to federalism”; it will be interesting to see whether this approach will persist in a political context involving increasing tensions between the union and the states, or whether the Court will consider another path.

Suggested citation: Gautam Bhatia, The Indian Constitution through the Lens of Power – I: The Union and the States, Int’l J. Const. L. Blog, Mar. 1, 2023, at: http:/www.iconnectblog.com/2023/02/the-indian-constitution-through-the-lens-of-power-I-the-union-and-the-states/

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[1] Roberto Gargarella, Latin American Constitutionalism: 1810 – 2010: The Engine Room of the Constitution (OUP 2013).

[2] Article 1, Constitution of India, 1949.

[3] Article 3, Constitution of India, 1949.

[4] Entry 97, List I, Schedule VII, Constitution of India, 1949.

[5] Article 356, Constitution of India, 1949.

[6] State of West Bengal vs Union of India, 1964 SCR (1) 371.

[7] Naga People’s Movement of Human Rights vs Union of India 1998 (2) SCC 109.

[8] Bhim Singh vs Union of India, (2010) 5 SCC 538.

[9] State of West Bengal vs Union of India, supra (Subba Rao J, dissenting).