Review: The Indian Constitution; A Conversation with Power by Gautam Bhatia

In his latest book, Gautam Bhatia takes us on an illuminating journey into the history, text, design and power map of the Indian Constitution, which has been moulded, at different points, by the judiciary. Shorn of veneration or awe, it analyses the Constitution through the lens of power. It is from this vantage point that the author studies the developments between 2019 and 2024 including the removal of the special status of Jammu and Kashmir, the toppling of state governments under opposition rule, the mass expulsion of Members of Parliament and the use of the Enforcement Directorate and the UAPA to quell dissent. He then concludes that these are not sudden aberrations.

Bhatia’s core arguments rest on the following propositions: “…First, that the Indian Constitution, like any other constitution, is a terrain of contestation between different and competing visions of power; secondly, that the Constitution has been characterized by a ‘centralizing drift’ towards a statist, homogenous, and executive oriented vision of power at the cost of a more decentralized, plural, and distributed vision; and thirdly, this ‘centralizing drift’ is both embedded in the Constitution’s text and design, and has been accelerated through the judgments of the Supreme Court at various ‘inflection points’ in our constitutional history.”

The book looks at how power plays out from six aspects – federalism, parliamentarianism, pluralism, institutions, and rights and the people. Bhatia states that both the text of the constitution and the intent of the framers resulted in making it an ‘executive trusting document.’ The newly independent state, fraught with communal violence, caste disparities and long colonial rule necessitated an executive which could deliver radical reform unencumbered with parliamentary delays and local concerns. Thus, ironically, instead of doing away with the colonial legacy, the constitution, on many points, ended up reaffirming it. The author expounds beautifully on how not only the text but the silences in it too were interpreted by courts to favour the centre at the cost of federalism.

The chapter on parliamentarianism is a fascinating read on the evolution of this form of government. About the colonial parliament he writes, “Parliamentarianism in India, as we have seen, was practised under the thumb of a top-heavy executive and under the permanent threat of takeover by that executive.” It was this distorted version of parliamentarism then that the Constitution ended up articulating. To explain, Bhatia cites constitutional silences and ambiguities on the positions of speaker and leader of the opposition, and the classification of the money bill.

The book also provides an interesting understanding of what the author refers to as “Constitutional Common sense”. He defines it as “…a set of assumptions, beliefs, and ideas, widely shared and internalized among the community of judges, legislators, administers, civil servants, and lawyers, about how the Indian Constitution does, and should organize power.” Similar to Gramsci’s common sense, this constitutional common sense is rarely articulated and often becomes the guiding tool for courts while interpreting the silences and gaps in the constitution.

The chapter on institutions provides a clear example of how silences within the constitutional text facilitated the control of those institutions by the executive. The Election Commission, the Central Bureau of Investigation, and the Chief Information Commissioner, among others, are discussed here. The chapter draws a distinction between a statutory institute and a constitutional one and notes how the former is weaker than the latter as it is subject to greater interference of the legislature. He notes, however, that the Constitution’s silence on issues of appointment and functioning makes constitutional institutions amenable to the executive.

Even regarding the venerated chapter IV of the Constitution on fundamental rights, Bhatia notes the presence of an uneven balance between the state and the individual. India is one of the few countries in the world which explicitly authorizes preventive detention by constitutional text. Bhatia states that the insertion was justified as the need of the hour of a newly independent nation fraught with communal tensions. However, the same has, over time, become the founding principle for several draconian laws. He notes that the courts furthered the narrow reading of liberty by continuing the colonial justification of “permanent emergency”.

Similarly, he points out that after the big pronouncement of “We the People” in the preamble, the people disappear from the body of the constitution. He believes the lack of specific participatory provisions was not an accident or the result of ignorance but by design.

For me, the most interesting chapter was ‘Interlude: Yesterday’s Tomorrow’, which highlights the different points in our constitutional history that provided opportunities for change but were not acted upon. Bhatia cites the Mysore State Constitutional draft of 1920, the alternative constitutional drafts proposed by MN Roy, Shriman Narayan Agarwal and others from 1944-48, and the end of Emergency in 1977 in this regard. These opportunities allowed for the creation of a text which was not executive heavy but created a more balanced power distribution. However, that never came to fruition.

One of the book’s biggest achievements is that it removes the veneer of neutrality from all the actors and institutions involved. Neither the drafters of the constitution nor the courts were detached arbiters; each has been partisan in the creation of the centralizing drift. The author ably articulates what he terms as ‘inflection points’ or moments when the Supreme Court, through its judgments, cemented that drift of the constitution.

Gautam Bhatia presents his arguments meticulously. Each chapter begins with an outline of what it aims to discuss and uses lucid language to elaborate on them. The Indian Constitution: A Conversation with Power will serve as a great tool to initiate conversations and to reimagine the organization of power in the constitution.

Parijata Bharadwaj, is a lawyer and researcher based out of New Delhi. She is one of the co-founders of the Jagdalpur Legal Aid Group, which provided legal services to adivasis in Chhattisgarh.