Book Extract | The Indian Constitution: A Conversation in Power by Gautam Bhatia

Ever since its creation, the Indian Constitution has been a deeply studied document. It has been discussed and dissected by citizens, scholars, lawyers and politicians.

Excerpted with permission from The Indian Constitution: A Conversation with Power by Gautam Bhatia, published by HarperCollins Publishers India.

Power Unbound: The People

‘WE THE PEOPLE OF India … do adopt, enact, and give to ourselves this Constitution.’ With these ringing words, the Preamble casts ‘the People’ as the primary actors in India’s constitutional drama. The Constitution—both as national vision and as a blueprint for governance—claims to draw its legitimacy from the people; in particular, through the consent of the people, who authorized the Constituent Assembly to frame the Constitution on their behalf.

As in all constitutions that invoke ‘the People’, this story involves at least a degree of fiction, or evasion. In what manner, and to what degree, were the people actively involved in the drafting of the Indian Constitution? The predominant view, entrenched over decades, has been: not very much. The Constituent Assembly was not constituted through universal adult suffrage. Rather, its members were ‘elected’ under the highly restrictive franchise rules of the Government of India Act of 1935. Nor was the draft Constitution affirmed by the people in a referendum. There was, therefore, a democratic deficit both ‘upstream’ and ‘downstream’ in the making of the Indian Constitution, leading scholars to view it as an elite, top-down document, imposed upon a relatively passive population.

More recent scholarship has challenged this assumption. Upon a careful study of the archives, Rohit De and Ornit Shani argue that beyond the Constituent Assembly Debates, the Constitution-making process saw a wide and deep engagement across the newly forming country. De and Shani urge us to understand the making of the Indian Constitution as an ‘assemblage’ of several other smaller-scale constitution-making processes, taking place across a variety of diverse publics: from constitutional reform movements in the princely states, to direct engagement with the Constituent Assembly by the judiciary, to representations and critiques from tribes and other indigenous groups. While in some situations there is a direct link between the intervention and the final form of the constitutional text, in most other contexts, the key issue was not so much the impact on the text, as the creation of a vocabulary of constitutionalism through participation.

This participation and this articulation of constitutional vocabulary in turn contributed to the legitimation of the Constitution, despite the absence of upstream or downstream ‘popular’ ratification. 

This contested history is reflected in the Constitution itself, and is the focus of this chapter. What role do the people have in the story that the Constitution tells about itself, beyond the ritual invocation in the Preamble?

To understand the context, let us begin with Uday Mehta’s important insight: ‘Constitutional founding moments express that inescapable circularity in which they are authorized by the people, but which, by the structures that constitutions put in place, reconstitute the people as subjects.’ In other words, the people—having given to themselves the Constitution—then shuffle off the stage, leaving the rest of the drama to be enacted by other players: representative bodies, administrators, judges, commissions, and so on. According to the preambular fiction, ‘the People’ are the authors of the Constitution, but their role as authors ends once the Constitution comes into force.

I. The Emergency

Reams have been written about India’s ‘first dictatorship’, the twenty-one-month Internal Emergency that lasted from 25 June 1975 to 21 March 1977.5 Under Prime Minister Indira Gandhi, democracy was suspended, the political opposition arrested and imprisoned, civil liberties violated with impunity (including mass demolitions), and the Constitution eviscerated.

But ultimately, it was the People who repudiated this attempt to establish a constitutional dictatorship, handing Indira Gandhi a stunning political defeat in the general election of 1977.

The victorious Janata Party—a hastily cobbled-together coalition of opposition forces—had explicitly campaigned upon a platform to restore democracy and to undo the damage wrought by the Emergency. Their sweeping victory affirmed that they had a mandate to do just that.

At the heart of the Emergency Regime’s assault upon the Constitution had been the 42nd Amendment, much of which was enacted on 3 January 1977.6 The 42nd Amendment was principally about power: the shifting of power to the Prime Minister, and to the executive-dominated Parliament, away from other institutions. Its primary target was the judiciary, and especially the recalcitrant high courts, many of whom had proven to be a thorn in Indira Gandhi’s side by frequently ordering the release of detained dissidents and opposition leaders.

To serve this goal, the powers of high courts to invalidate central laws was removed (and vested solely in a more amenable Supreme Court), the power of constitutional amendment was placed explicitly beyond judicial review, and supermajorities were required if a court wished to invalidate a law for being unconstitutional.

There were, however, other significant changes to the constitutional structure. Subjects such as education were shifted from the State List to the Concurrent List, thus subordinating the legislative and executive powers of the states in key domains to that of the Union’s. A new Article—Article 257A—was inserted stating that ‘the Government of India may deploy any armed force of the Union or any other force subject to the control of the Union for dealing with any grave situation of law and order in any State’. To supplement this, the competence to enact laws requiring the deployment of central forces in the states was explicitly inserted into Schedule

The Emergency provisions themselves were amended. One key change was that while under the pre-Emergency Constitution, the default position was that laws enacted during the Emergency would lapse unless expressly affirmed. According to the new position, these laws would continue unless expressly repealed. This blurred the line between an Emergency as an explicitly temporary event with a defined starting point and end point, and the Emergency as a continuing event whose effects would linger in the legal landscape even after it was formally revoked.

However, it is important to understand that even as the 42nd Amendment accelerated the Constitution’s centralizing drift, much of what defined the Emergency did not need formal constitutional amendments. After all, the Emergency had been declared under the existing Constitution, and many of the human rights violations were explicitly sanctioned by the ‘rights-less zone’ that the Constitution’s Emergency provisions contemplated. The widespread use of administrative detention under national security legislation hearkened back to the long 1950s and 1960s, and the lasting shadow of A.K. Gopalan. Home demolitions—carried out at the instance of Indira Gandhi’s son, Sanjay Gandhi—were also a legacy of times past, now accelerated under conditions of greater impunity. In short, not just the formal changes, but even the conduct of the State during the ‘declared Emergency’ reflected the blurring of lines between the state of exception and the state of normalcy that we have discussed in the previous paragraph and elsewhere.

Thus, whether by constitutional amendment or otherwise, the defining features of the Emergency implicated many of the strands of the web of power considered in this book, and illustrated the inability of the existing constitutional arrangements to stand as a bulwark against an authoritarian centralizing of power without accountability.

The end of the Emergency, and its comprehensive repudiation by the People, opened up a window of opportunity for the first time in the two-and-a-half-decades of the functioning of the Constitution: an opportunity to undo not just the excesses of the Emergency, but reconsider the very centralizing drift embedded within the Constitution, of which the Emergency was only the most recent and most virulent symptom.

The 44th Amendment was the Janata Party’s main response. The Statement of Objects and Reasons of the Constitution Amendment Act hit some of the right notes, invoking the need to protect Fundamental Rights, to place checks upon emergency powers, to give the people an ‘effective voice’, and to correct the ‘distortions’ in the Constitution that had been wrought during the Emergency.

And yet, the amendment itself was only a partial rollback of these ‘distortions’. The power of the courts was restored. The threshold for triggering an internal emergency was heightened, and (some of the) older limits were restored. It was stipulated that even during an emergency, the rights under Articles 20 and 21 could not be suspended (a direct riposte to the Supreme Court’s infamous habeas corpus judgment). And—perhaps most significantly, in a sign that the 44th Amendment contemplated something deeper than simply reversing the Emergency amendments—additional procedural safeguards were added to the preventive detention provisions under Article 22. The stipulated period for which a person could be detained without confirmation by an advisory board was brought down to two months, and the advisory board itself was to consist of serving or retired high court judges.

But the inadequacy of the 44th Amendment stares the reader in the face. Changes in the legislative lists remained intact. Another crucial change that the 44th Amendment left untouched was the fate of laws after the end of an Emergency. The 44th Amendment conspicuously did not restore the pre-Emergency position that laws passed during an Emergency would cease unless explicitly affirmed. Thus, the line between the state of exception and the state of normalcy remained blurred, and many years later—as we have seen in Chapter 1—it allowed the Supreme Court to endorse the near-limitless powers of the Union during the pendency of an internal emergency, leaving the very existence of states at the mercy of the Union. And finally, the amendments to Article 22 were never notified by the government, and thus never came into force. An attempt to compel the Union to do so was rejected by the Supreme Court in 1980—the very Court whose powers the 44th Amendment had so enthusiastically restored, in the hope that it would stand as a bulwark against the State’s encroachment upon the rights of the People.

The character of the 44th Amendment is perhaps summed up by the following: the 42nd Amendment’s Article 257A (mentioned above) which authorized the central government to deploy armed forces in the states was repealed. But Entry 2A of List I (also a 42nd Amendment product, which authorized Parliament to legislate for the deployment of armed forces ‘in aid’ of the civilian authority in a state) was left intact, as was the mirror provision in List II taking this competence away from states. Twenty years later (as we saw in Chapter 1) the Supreme Court seized upon this to uphold the constitutional validity of the Armed Forces (Special Powers) Act.

Beyond these deficiencies, the partial and incomplete nature of the 44th Amendment reflected an almost exclusive concern about the symptoms (the Emergency and the 42nd Amendment), rather than the cause (the Constitution’s centralizing drift). True, not all of this can be laid at the feet of the Janata Party; Indira Gandhi continued to enjoy large numbers in the Upper House, which allowed her to block a part of the proposed changes. Even in its moment of victory, the Janata Party was thus constrained in how much it could accomplish by way of constitutional amendment. Had it managed to sustain the wave of popular support that it brought it to power in 1977, perhaps a time would have come, indeed, for those conversations.

But history—as W.H. Auden wrote, and later regretted writing—cannot help nor pardon. Riven by its internal contradictions, the Janata Party fell apart by 1980. In the elections that ensued, Indira Gandhi was returned to power. One of the first acts of the second Indira Gandhi regime was to legislate the National Security Act of 1980 (NSA), which legalized preventive detention (once again) under a central law. The Supreme Court, like the French Bourbons, had learned nothing and forgotten nothing. It upheld the NSA soon after.

And so, the brief window that had been opened up in 1977 to reconsider the centralizing drift of the Constitution, and to reflect upon the design choices that had brought the country its first post- Independence dictatorship, was closed once more. In the fifty years since the Emergency, it has not opened again.

If, therefore, there is a moment of regret in our post-Independence constitutional history, a moment where an alternative future for constitutionalism flickered into existence before being snuffed out, it is perhaps the brief heady days of 1977.

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Gautam Bhatia The Indian Constitution: A Conversation with Power HarperCollins India, Gurugram, 2025. Pb. Pp.300

Ever since its creation, the Indian Constitution has been a deeply studied document. It has been discussed and dissected by citizens, scholars, lawyers and politicians.

The Indian Constitution: Conversations with Power takes a new approach in discussing the Constitution: as a document that creates, shapes, channels and constrains power. It shows how the seventy-five years of constitutionalism in India have been characterized by a drift towards centralized and homogenous power located within the union executive. It also examines how certain Supreme Court judgments, especially in recent years, have accelerated this drift towards centralization.

However, it is for us citizens to decide, ultimately, what vision(s) of constitutional power we want to adopt and give to ourselves. A timely and critical interrogation of the Constitution through the lens of power, this book asks certain fundamental, first-principle questions about the Indian Constitution that all Indian citizens need to think about.

The book extract that has been published has been taken from two different parts of the book. pp. 177-178: pp. 208-12. These two pieces were selected since they complement each other very well. It is about the Indian constitution being infused with the spirit of the people, a democracy, and given that it is the soul of a working and the longest written constitution, then it is remarkable how it was hijacked for the Emergency to be imposed. This is a fact that few know about. Hopefully, it will help readers understand how our constitution works and how Gautam Bhatia lives and breathes about it. It is integral to his existence as a writer, lawyer, and sci-fi writer/ expert.

Gautam Bhatia is a lawyer who has been involved in several important contemporary constitutional cases. He is the author of Offend, Shock, or Disturb: Freedom of Speech under the Indian Constitution (2015), The Transformative Constitution: A Radical Biography in Nine Acts (2019), and the science fiction books The Wall (2020) and The Horizon (2021).