Category: Blog

by Aishwarya Birla

As the year draws to a close, we review the constitutional matters decided by the Supreme Court in 2023 as we celebrate the 74th Constitution Day on 26 November. This year was one that had the Supreme Court hear both landmark cases pertaining to constitutional interpretation and public importance. This piece reviews select cases and developments to reflect on the engagement with the Constitution and the Supreme Court in the larger context of the road ahead and also the relevance of the past.

The Supreme Court denies marriage equality

Perhaps the most recent and vastly publicised case decided by the Supreme Court that dealt with constitutional interpretation and the scope of the fundamental rights guaranteed to citizens, was Supriyo v Union of India, popularly known as the Marriage Equality case. The five judge bench had a split decision, although the bench unanimously held that there was no right to marry as protected by the Constitution under Article 21, and nor could a claim of discrimination be made in the lack of enjoyment of this right under Article 14. Interestingly, this case looked not only at the scope and the interpretation of these fundamental rights as enshrined in the constitution, but also the role of the Supreme Court and the scope of its powers to read into the Constitution rights not expressly enumerated when not derived from the fundamental rights. Chief Justice Chandrachud’s opinion refers to the Constituent Assembly Debates to investigate the powers granted to the Supreme Court. However, despite the detailed inquiry into the breadth of powers of the Supreme Court and the right to equality and choice of life partners regardless of sexuality, the Supreme Court did not decide in favour of the petitioners in their demand for marriage equality. Not only does this have relevance in terms of the recourse to the Constituent Assembly Debates and their impact on current constitutional interpretation, but also on the claims of India’s constitution being transformative and what that means for the future of constitutional engagement and rights litigation.

The Supreme Court upholds demonetisation

The companion case in terms of widespread impact and celebrity that was also decided by the Supreme Court this year was the challenge to the demonetisation scheme the government implemented in 2016. Both the constitutionality and the manner of its implementation were challenged before the court. In a 4-1 majority the court held that the scheme was constitutionally valid. This case also focussed on the scope of interference of the court in matters of economic policy and the scope of powers of the Union to implement such a scheme. Although the question revolved largely around the Reserve Bank of India, 1934, the larger questions of separation of powers and scope of judicial review remained, similar to the questions raised in Supriyo.

The Supreme Court hears the challenge to the removal of special status of Jammu & Kashmir

Another such case was the petition challenging the abrogation of Article 370 which granted special status to the state of Jammu & Kashmir, which hinged on the petitioners’ claim that Article 370 was meant to be a permanent feature of the Constitution of India and the Indian Union Parliament could not take the place constituent assembly of Jammu and Kashmir for the purposes of state re-organisation. This question of the role, importance, and irreplaceability of the Constituent Assembly is also one tied to the history of partition, accession, and constitution drafting and machinery.

Other important cases considering similar questions

Questions pertaining to the scope of rights and the power of the Supreme Court were also raised in cases examining the challenge to the practice of Jallikattu, which was rejected based on the Tamil Nadu Legislature’s view of the cultural significance of the practice; the power of the Supreme Court to directly grant divorce under Article 142; and the early release of the Bilkis Bano gangrape convicts in terms of the power of the state to sanction such a release under federal statute and the relationship between the Centre and Gujarat. The questions of the scope of powers of each such state organ and the scope of rights as enshrined and spelled out in the Constitution 74 years ago are still being debated, making the history and drafting of this Constitution as relevant today.

Constitutional benches to be institutionalised?

Beyond cases, this has been a year of constitutional benches, with Chief Justice Chandrachud proposing that five judge benches become permanent features of the Supreme Court. Further, several cases were listed before seven judge and nine judge benches for directions this year, with the hearings for the same to likely be next year. The constituting of seven and nine judge benches has become a relatively rare phenomenon, with this bench composition, along with constitutional benches, being more common in the years immediately following the adoption of the Constitution in 1950.

Cases and developments so far in the year then have had the common theme of constitutional provisions in terms of delineation of powers, scope of interference, questions that have been debated since before the Constitution was drafted. The Supreme Court often looks to the Constituent Assembly Debates to aid their interpretation of the Constitution of India, a mode of interpretation that also characterises the cases decided this year. The work of PACT focusses on looking at the importance of historical materials, such as the Constituent Assembly Debates and to generate literature and tools that can aid further inquiry into constitutional law and history. It will be interesting to see the role of historical analysis for current and future interpretations in questions beyond what is usually seen as the ambit of transformative rights, focusing not just on the interpretation of rights but on the role and scope of state machinery.

by Lauren Davis

Parliamentary procedure is underpinned by the understanding that each delegate involved in a negotiation knows exactly what text is under discussion at any given point. Presumably, delegates would be aware of the effect each proposed amendment would have on the text as it existed at that day and time. This understanding, however, is largely lost to us as readers. We can read accounts of these amendments to the text in official journals, but the minuted record almost entirely divorces the drafting of these documents from the important context in which the decisions were made.

Seeking to shed new light on the complex drafting process surrounding the Constitution of India, PACT utilises the bespoke software of the Quill Project (Pembroke College, Oxford), which combines traditional archival research and innovative digital methods, to reconstruct the context surrounding the drafting of this foundational document.

Quill foregrounds the story of the archive: how meaning is created and enacted on the word level. What was the text before an assembly when certain amendments were made or speeches given? It places the archive in context, allowing users to track the contributions of individuals, the evolution of certain phrases, and the paths a negotiated text, such as a constitution, took throughout various committees, for example.

But on an even more basic level, it brings together disparate source materials, many of which have been previously unavailable for public consumption. Any Quill project begins with a survey of available source materials. For the Constitution of India project, the logical place to begin was with the Constituent Assembly Debates, a verbatim record of the Constituent Assembly proceedings. This verbatim record can then be parsed into one of four overarching ‘event’ types – person events, document events, procedural events, and decision events – which are represented as icons in a digital model. These broad categories can be further subdivided to capture the nuances of the event. The result is an interactive timeline that users can click through to see how the constitutional text changes amendment by amendment, day by day.

This methodology has already revealed several interesting findings, one of which is the unique role of the Constitutional Adviser, an appointed official to the Assembly that has no parallel in the other constitutional conventions digitised by Quill, such as United States federal and state constitutional conventions or the Australasian federation conferences and constitutional conventions. The closest office from these conventions and conferences is the Secretary, but like the Secretary of the Indian Constituent Assembly, the secretaries of these conventions were not authorised to create constitutional text.

The responsibilities of the Constitutional Adviser included things like circulating a questionnaire on constituting the Union, drafting memoranda on provincial and union constitutions (upon which those committees based their discussions and subsequent reports to the Constituent Assembly), and presenting a constitutional draft. He was not, however, elected to represent a constituency like the delegates were. In other constitutional conventions, such as those mentioned above, this fact would preclude him from creating constitutional text and serving on committees.

However, the archive reveals that he did just that. A comparison of archive documents reveals how much power he had to make decisions to the text that, based on the available record, do not appear to have been the product of negotiation. The following example takes the 1947 sessions as scope, as they represent a period of textual – rather than theoretical – negotiation, but predate a long constitutional draft and the complicated negotiation that accompanies one.

In the Advisory Subcommittee on Fundamental Rights, the committee took up a draft on the subject introduced by K.M. Munshi. As is typical parliamentary procedure, the committee severally considered the clauses, amending and voting on each one. From this clause-by-clause treatment of the document resulted an amended version of the text, shown in the left-hand images below, that was to be reported to the Constituent Assembly.

Modelling this process in the Quill software reveals, however, that this text is not what was reported to the Constituent Assembly. Rather, a heavily amended version of the text agreed by the committee, shown in the right-hand images, is reported. In these images, red text represents deleted text, and blue represents inserted text. These changes are both superficial drafting amendments and substantive changes, changes that – based on several documented instances of his revision of clauses – were presumably made by B.N. Rau and not concurred in by the committee. In other words, it is possible that an official who was not elected to represent a constituency could make substantive, unilateral changes to the text under consideration. This then becomes a hypothesis for testing through further archival research.

This example is one of several that demonstrates the value of applying a digital humanities approach to the study of documents that have been the subject of much traditional academic research. By foregrounding the story of the archive, much of which has been buried in boxes and untouched files, and reconstructing on a digital platform the context within which this foundational document was negotiated and written, we  acquire better knowledge of processes of constitution-making.

The Quill model of the Constitution of India negotiations is a work in progress and will be made public as part of the PACT Exhibition in 2025.

by Aishwarya Birla

Achyut Chetan’s new book Founding Mothers of the Indian Republic: Gender Politics of the Framing of the Constitution, remembers the women members of the Constituent Assembly and sheds light on their contributions to the making of the Constitution. The drafting of India’s Constitution has been the subject of a range of academic and popular writing in recent years. However, this book is arguably the first substantive engagement with the role women in India’s constitutional founding. 

The focus on women members that Achyut brings in his work highlights the astute approach that the women members brought to the drafting process, building on their strengths with an awareness of what approaches would not yield the desired results in terms of their campaigns for women’s rights, for instance. This ranged from the preference to put forth their proposals for constitutional provisions and drafting choices by making submissions in writing as opposed to interventions in the plenary debates, building on their work at the All India Women’s Congress (AIWC). Women members also prioritised choosing to get their foot in the door and settling for the acceptance of watered down versions of their demands that could later be expanded upon, as opposed to the rejection of lofty demands that would shut the door on their proposals with finality. 

Women members also stood out in their affinity for collaboration, with women speaking on behalf of each other, for instance, Amrit Kaur standing in and contributing for Hansa Mehta when she was unable to be present in the Constituent Assembly due to her work in the United Nations. They were also conscious of the differential treatment given to contributions made in the drafting process, depending on which member made the contribution. Women members thus took to writing letters to influential male members of the Assembly to have their proposals put forth and given due weight. Such collaboration as a feminist strategy as a mode of constitutional debate and drafting is a sharp and much needed addition to the strategies of conflict, consensus, arguing and bargaining that often dominate the study of constitutional drafting processes.

Another key contribution that Achyut brings through his work is the careful and nuanced reading of the demands and propositions of the women members, highlighting the dynamic nature of their positions on issues pertaining to the ‘woman question’, and their staunch commitment to equality and rights for women. Achyut offers evidence of their ever evolving demands that ultimately culminated in what now stands as Article 15(3) of the Constitution of India, as a recognition of the additional social disabilities faced by women and the need for the state to rectify these disabilities, with minority status being seen as a result of social disabilities and not biological difference. Dakshayani Velayudhan’s position on the unsuitability of granting women night shifts despite arguing for the right to work for women shows a nuanced understanding of the harassment due to the indirect discrimination women would face through such a formal equality approach. This substantive equality approach can be seen in the contribution of women drafters to issues pertaining not just to the ‘woman question’, especially evident in the robust protections argued for under procedural fairness which are now reflected in Articles 21 and 22 of the Indian Constitution.

Although Achyut’s work is unique and profound, not all of his arguments are fully convincing. Although the need for women drafters to anchor their demand to the nationalist movement is understood, I cannot help but wonder what was sacrificed or lost in such a strategy. The notions of substantive equality, though present and firm, are often defeated by other claims made by women, raising the need to inquire further into the eliteness and the radicality of the women members, just as a matter of due diligence and not of disagreement or rejection of their contributions. Another aspect to engage with critically is phrasing. Achyut deliberately and consciously chooses the phrase Founding Mothers, to refer to women drafters in order to counteract the gravitas of the phrase ‘Founding Fathers’ and to elevate the women drafters to their rightful, and equal, status. However, the phrasing of ‘Founding Mothers’ paints a picture of motherhood that cannot be seen to be as an appropriate corollary to fatherhood, especially in the context of constitutional drafting and the pedestal that men in the drafting committee are often placed on. 

The book serves as a provocation to making similar inquiries into the presence and contribution of women drafters in issues beyond rights and the ‘woman question’, perhaps inquiring into the form of parliament, judicial functioning and the executive that was enshrined in the constitution. It might be useful to broaden the evaluation of women’s contributions to constitution-making, not merely by assessing whether their proposals ended up in the Constitution or not. We could examine their participation in debates and discussions, as well as their dissenting views during committee and plenary stages. The question to be asked is, what was the impact of these eleven women on the Constitution of India? What would the Constitution look like if there were no women in the Constituent Assembly?

by Dr Anna Dziedzic

Alexander Hudson’s book The Veil of Participation: Citizens and Political Parties in Constitution-Making Processes inspires a great deal of self-reflection by those of us who study public participation in our scholarship and advise on constitution-making processes in practice. The book makes a compelling case that public participation during a constitution making process has only a limited impact on the content of the final constitution. Hudson identifies the role of political parties as a factor, and shows that the impact of public participation is likely to be lessened where there are strong political parties engaged in the process. As he explains, this is not necessarily a bad thing. In some circumstances, political parties are ideally placed to gather and aggregate the views of the people and translate them into constitutional terms. But this is not true in all contexts: political parties may be weak or corrupt, they may be distrusted, or they may not be willing actors in the process of constitutional change.

In these circumstances, more may be asked of the public through direct participation in the constitution-making process. Although increasingly commonplace in constitution making processes, the evidence on the effectiveness of public participation is mixed. Hudson’s book makes an important contribution to this evidence base, sounding notes of caution against over-promising on the impact that public feedback has on the final constitutional text.

The literature also raises concerns about how best to design a process for public participation, taking account of a diverse range of contextual issues such as the public’s level of constitutional literacy, the accessibility of the process so that it is inclusive of all groups and not just self-selected elites, and the risk of political manipulation.

In the final chapter, the book presents points of guidance for constitution makers.  Of these, the most compelling, in my view, is the call for constitution makers to be clear about the purpose of public participation. The book provides evidence that commonly-used processes for public participation do not really work to generate substantive input on the text of the constitution. What might be done differently, if the goal of public participation is to enable the public to have a say about the content of the constitution? Public participation is very often framed as consultation, a one-way form of communication in which the public provide information to constitution makers who then do what they want with it. It might be contrasted to deliberation, in which constitution makers and the public (or representatives of the public) work together to solve a particular constitutional issue. Deliberative forms of public participation look very different to consultation – the mechanisms are different, as is the degree of control over the process, its transparency and accountability.

The purpose of public participation may be something different altogether. One common claim is that public participation has a legitimating effect, because it generates a sense of national ownership of the constitution.  Again, do common processes for public participation achieve this? This question was outside the scope of The Veil of Participation. However, Hudson’s analysis of the case studies raises concerns here too, including about the ways in which public participation may not be inclusive, because it privileges those with the time, resources and expertise to make submissions or provide feedback in other ways. Despite their own shortcomings, perhaps a referendum of all people rather than consultation with a self-selected few might meet the requirements of legitimacy better.

Finally, in thinking about the implications of the book’s findings for the practical task of constitution making, it is important to acknowledge the diversity of actors involved in constitution making, within the country engaged in constitutional change (from the formal constitution making body, to the political parties and NGOs that mediate between it and the public) as well as external advisers and donors. In some countries, external actors have played a central role to help domestic institutions to fund and administer processes for public participation in constitution making. For this reason, the practical implications of this book are as applicable to external actors as they are to governments, and local political parties and elites managing the constitution-making process.

Dr Anna Dziedzic is Programme Officer, Constitution Building Processes in International IDEA’s regional office for Asia and the Pacific. The views expressed here are my own and do not necessarily represent the views of International IDEA.

by V. Geetha

K G Kannabiran’s The Speaking Constitution stirs memory in interesting ways. I was reminded of the time he was actively present in my home state of Tamil Nadu, with cases that pertained to the incarceration of minorities and political prisoners accused of left wing militancy. He wore his judicial competence lightly and made clear to all of us that civil liberties organisations were essentially citizens’ groups, and that one need not be a lawyer to play a role in such organisations. In other words, he suggestively noted that civil liberties groups were not unlike people’s movements.

In a sense, it is this spirit of viewing the business of defending civil and democratic rights as a social duty, which permeates this book. Written originally as a series of essays for a Telugu daily, the book speaks to a new generation, and calls attention to the doing of civil liberties work, to what it takes to defend rights guaranteed to us in the Constitution of India. At a time, when an investigation into rights violations appears captive to notions of ‘correctness’ encouraged by an inward looking social media culture, Kannabiran’s conception of civil liberties work as one undertaken in a spirit of constitutional gravity, and in consultation with local communities and groups appears both sober as well as productive. It helps take the act of defending rights into the heart of our social worlds.

For Kannabiran, the defense of liberties was ultimately a matter of upholding constitutional values, and he insisted that it was important to do so, even when one was defending those who discarded the latter as so many bourgeois truisms. As he noted in court once, it is not the values of those who are disdainful of constitutional morality that are on trial, but of those who have sought to build a modern republic that need to be affirmed and renewed.

His reading of the right to life and livelihood are important in this regard: he held that these rights ought to be understood as including and substantializing everyday political assertion. That is, political assertion in the cause of social and economic justice ought not to be viewed as always and already a challenge to the sovereign republic and state, rather it was to be understood a right to politics. To be political is to be alive to injustice in a democratic polity and not to have to pay with one’s life for justice claims that render life as such meaningful and precious.

In doing rights activism in the manner that he did, Kannabiran was insistent that the ‘truth’ of phenomena matters: for instance, a witness at a trial ought to be encouraged and supported in speaking the truth and there was no question of ‘coaching’ him to say what was opportune in the eyes of the law. While he sometimes rued the unimaginative ways in which judges ‘read’ the law and Constitution, he did not seek concessions by way of judicial arguments and protocols.

The Speaking Constitution is a book that addresses the people of India, thereby making it clear that it is their needs and struggles that inform constitutional values, and that to defend these latter is to defend the sovereign nation.

by Shree Agnihotri

The edited collection explores extensively the related themes of stability and resilience in the constitutional democracies of South Asia. The collection attempts an equitable focus amongst the South Asia countries by taking special effort to include and study the constitutional institutions, phenomena, and actors from countries that are not as frequently studied by constitutional scholars.

Scholarly discourse on South Asian constitutional studies invariably operates in the shadow of the idea that the liberal democratic model is inherently western, using South Asia as a placeholder for examples of nascent and/or decayed democratic states. For a scholar studying South Asia, then, the options are either to adopt the existing framework despite its simplistic implications, or to take on the mammoth task of constructing a matrix of alternative vocabulary to define and theorise the South Asian experience.

The collection offers a much-needed respite to the field in this respect. It lays down a promising framework for future comparative studies involving South Asia. This conscious attempt, that the editors call a ‘slow’ approach to comparison, is aimed at sharpening the focus on South Asia as an understudied region with a rich history of constitutional resilience while maintaining the salience of each individual jurisdiction on its own terms. The result is a humble, nuanced beginning to an ambitious project. By recognising the importance of building a strong foundation of single-state studies for the larger project of theorising a South Asian jurisprudence, the collection manages to avoid, what would otherwise have been a premature conception of South Asian constitutionalism.

The approach has allowed the contributors to capture in great depth and with better clarity the systemic, cultural and historical trends of their jurisdictions. Parts II (Constitutional Design) and III (Federalism) respond to the urgent questions concerning constitutional design and principles in Sri Lanka, Bhutan and Nepal. This is not to say that the collection is overtly theoretical in its analysis. On the contrary, a significant portion of the book is devoted to studying the role played by institutional actors in the evolution and functioning of their constitutional systems. Parts IV (The Political Branches), V (The Judiciary), VI (Fourth Branch (Guarantor) Institutions), and VII (The Military) deserve special mention for the thorough and sustained analysis of the systemic arrangements that have contributed to constitutional resilience over time in India, Afghanistan, Maldives, Sri Lanka, Bangladesh and Pakistan.

A further advantage of this approach, and one that is especially beneficial for comparative constitutional studies, has been in the simultaneous widening of the scope of study: contributors to the volume have used not just courts and legal judgments, but also other sources such as trends in institutional (executive, legislative, military, among others) activity, events and phenomenon to piece together insightful narratives about the legal and political culture of their chosen jurisdictions. This benefits comparative constitutional studies by opening a line of enquiry into jurisdiction-specific understandings of constitutional resilience, and brings to the surface the nuances such a study entails. More interestingly, in Part VIII, the contributors study the ‘people’ as important actors in the life of a constitution. Used often as a conceptual category, the people of a nation are conspicuous by their absence from contemporary comparative constitutional studies. The contributors to this collection, however, trace the contours of people’s participation in making a constitution resilient and highlight the relationship between the citizens’ lived experiences and the development of constitutional practice and culture in India.

Amongst the many nuances one is bound to catch on to when reading the collection, the most significant one, in my opinion, concerns the duality within the term constitutional resilience. As the editors rightly note, constitutional resilience may be negative or positive. Whereas its positive connotations indicate the ability of the institutional framework to respond to conditions of decay, constitutional resilience may also be used to refer to the resilience of institutions, practices, and actors against the ‘healthy evolution of constitutional democracy’.

This acknowledgment and the conscious study of the negative and positive connotations of constitutional resilience gives rise to two important questions to be explored for future research. First, it draws attention to the relationship between the resilience of desirable and undesirable resilience of structures and principles that affect the functioning of the constitutional order. One wonders if resilience works in a cyclical manner, whereby decay is inevitable, if only to provide a way for the regeneration and reassertion of the constitutional principles and structures. Or whether constitutional democracies, under certain conditions, constantly evolve to better adapt to threats endemic to their polity. If the long-term goal of the project is to arrive at a better theoretical understanding of constitutional history, problems, and phenomenon in South Asia as a region, some effort would have to be made to compare and contrast the various ways in which different countries within South Asia have responded to decay and generate a deeper insight into the value and workings of positive resilient structures and principles.

Second, the contributions in the volume give us the important insight that institutions and actors that look or function similarly may end up contributing to resilience in a variety of ways under different conditions and jurisdictional settings. Given the relationship between formal continuity and stability that constitutional theory relies upon, what does South Asia tell us about the role played by informal politics in sustaining the kind of constitutional culture fruitful for the resilience of desirable constitutional structures and principles? Although the volume does not, as a collective, make any normative claims about the most appropriate source of positive resilience, the historical tension between politics and law as sources of resilience will need to be explored and studied. Lastly, while the attempt at bringing in the ‘people’ as an important institutional actor is a welcome step in expanding the contours of constitutional studies, effort will have to be made in future scholarship to prevent the homogenisation of the ‘people’ under a ‘South Asian’ identity.

The contributions in this edited collection raise important questions and open significant avenues for research. More importantly, the collection makes an original contribution to the developing field of comparative constitutional law in a manner that includes a diverse range of voices and perspectives, an attempt that deserves recognition and appreciation.