Gautam Bhatia: 'Any Constitutional document is essentially a power map of that country... India's Constitution has insufficiently democratized the colonial power map'

That's because any Constitutional document, whichever country it is, is a document that creates channels of power; it determines who will use power, and upon whom power will be inflicted. A Constitution is essentially a power map. And that's something that modern scholarship is turning towards.

The way that an ordinary person experiences constitutionalism is the language of power. When can the police arrest you, when can you be in prison, is the most basic way that the common person experiences the Constitution. But even beyond that, every election is going to determine who for the next five years will wield state power.

For all these reasons, it felt appropriate to understand the Constitution in terms of how it creates, distributes and constraints power.

Is that vastly different from using words like authority and responsibility, in a meaningful way?

Well, of course. Authority signifies a normative component, to start with. It suggests that there is a justification for it, and that's why it is authority and not just an exercise of power. I'm not interested in those questions. I'm interested in what the Constitution has to say about the way that power is wielded in our country. That's why power is the most basic and the most non-baggage term that that you can use for that.

In the book you write about India's Constitution taking on some things from our colonial past. Could you elaborate on that? How would you characterize it today, are we still trailing in terms of undoing old laws and past practices that are not useful anymore?

It's not so much about new laws or old laws. The argument I make in the book is that there was a specific kind of colonial power map, or that colonial constitutionalism had a power map where ultimately power flowed to the executive. There was of course a colonial legislature, there were the provincial assemblies, there were the courts. But basically the idea was that, at the end of the day, this is an executive-dominated place where the executive will dominate other bodies in India. And then the imperial, the British Parliament, is the ultimate source of power. And the argument I make is that our Constitution's power map has insufficiently changed that. Of course, in some ways there have been fundamental changes. And the biggest of those is the right to vote. In one fell stroke, we enfranchised our entire country. And that's something very, very few, if any, countries have done. It's always a much more incremental process in other places. So there are, of course, fundamental and far-reaching changes.

My argument is that the Constitution has insufficiently democratized the colonial power map. And so we need to think about how to work on that, and what to do about that.

You write that there's this drift towards the Center that's been built into the Constitution. Now, is that something that needs to change 75 years on?

The task of the book is primarily diagnostic, to diagnose what's happening with the Constitution right now and to locate the source of some of the issues that are arising. And of course, the most recent such issue is the whole Tamil Nadu-Center debate over language and the teaching of the third language.

My idea behind the book was to diagnose what it is about the constitutional design and interpretation that has led to a centralizing drift over the last 75 years. I don't offer up a perception about what is to be done because the idea is to initiate a debate. The idea is that I think that for too long, there has been a kind of a sacralization of the Constitution or treating it as a sacred document given to us by immensely wise forefathers. And of course they were wise people, and they were experienced, and they had gone through a lot, and we respect that, but it is ultimately a human document with human design.

And, so the idea of the book is to initiate that debate about centralization. And then of course, people can have different views about that. Some people may believe that centralization is still required. It's still a good thing. And some may believe not so. But that is the debate to be had launching off from the book, it's not in the book.

You have an entire chapter in the book on people's participation in the Constitution; how it is restricted to exercising their vote in periodic elections now, and how beyond 'We the people of India' in the preamble, the people disappear from the Constitution. Could you expand on that?

There are two models of democracy, and I'm simplifying a lot here, of course: direct and representative. In direct democracy, the vision is that of the Greek city state where the idea is that every decision is taken in the assembly of citizens, and citizens exercise direct power over decision-making that impacts public affairs. Of course, that Greek city state, Athens, had slavery, women were not treated as full citizens and all of that; so, you bracket all of that. The representative model is that you elect a representative or you choose representatives who will then act on your behalf in the assembly, but you yourself do not then participate directly in decision-making.

Now, this is not a binary. There is an entire spectrum of constitutional arrangements that exists, where on one end there is direct democracy and on one end is representative democracy. For a long time after the American Revolution, where the American Constitution was framed, the dominant idea was that democracy means that you limit yourself to a certain thin kind of representation, which is to say that you periodically, as the people, vote in your representatives and then the way you exercise accountability over them is in the next election. In the intervening years, the idea is that the institutions of the state will regulate each other. So, the courts and the executive and the legislature and the various bodies, they will exercise internal checks and balances, but the people as a collective are not involved until the next election. And that's what you call, in a certain sense, conventional democracy. But that was never the only version. Even many of the American state constitutions, prior to the foundation of the US, had a lot more involved role for the people. And in fact, it was in response and in fear of the people being involved, that finally the US Constitution had this structure and which sort of dominated the entire world after that.

But mid-20th century onwards, there was a realization that this is not enough. There is basically alienation between representatives and the people. The representatives sort of become rulers and not really servants of the people and so on. And so people began to look for different ways to, within an overarching representative structure, find space for people to participate. And that can come in through various ways.

For example, the popular initiative form of constitutional amendment, which is there in many countries like Kenya, Switzerland and so on, where the people can propose constitutional amendments. And then of course it goes through the various organs, but there is a role for the people. People can participate in legislative processes by giving feedback, by making submissions, and that is entrenched in the constitution. So these are various ways in which you can ensure that the accountability structures are continuing and not one-time periodic. So, the governance is a continuing system of accountability and not just a periodic one. Of course, the tension there is then between the fact that your overall structure is still representative. Obviously then you have to give representatives the scope and the freedom to act, and to do their job. So there's always this tension between how much role for the people is enough and at what point you have to say, okay, this is the boundary. Those are some of the content debates in the in that domain that are going on.

(Cover image courtesy HarperCollins)

Public interest litigation or PIL—isn't that also a tool for public participation, or potential for public participation, and it came after a Constitutional amendment?

I don't see PIL as a participatory mechanism at all. At least not in the way PIL is done in India. It's very lawyer-dominated. So I don't see it as being particularly participatory.

This idea of constitutional pluralism, that there are different types of people within a country and the Constitution should therefore be able to protect all of these different people, can you talk about this as it applies to India and the way you write about it in your book?

Constitutional pluralism is the idea that in a country that is linguistically, ethnically, politically, geographically diverse, that country's constitutional arrangements ought to reflect the diversity. So, for example, Quebec in Canada is an autonomous region, and the basis for its autonomy is the fact that in an anglophone country, Quebec is a francophone majority province.

Similarly, for historical reasons, there are a lot of devolved governments in the UK. Scotland and Wales and Northern Ireland have their own Parliament, and there are historical reasons for that. So that's the idea constitutional pluralism; it means that you do not have a one-size-fits-all approach pushed towards the territories of a nation.

In the Indian context, you see that in Article 371 of the Constitution, where a good number of states have differing arrangements with the Center within the overarching federal scheme. So, for example, Nagaland: there are laws that have to do with certain domains, like the personal domain, that do not apply to Nagaland without the consent of the Nagaland State Assembly.

Of course, the most prominent example of this which I discussed at some length in the book, is article 370 Jammu and Kashmir, which set up an autonomous state within the Indian Union. And I use that case to argue that the Indian Constitution and its framers and those who implement it, have never been particularly enamored of pluralism. And they have tried to achieve a more homogeneous territorial setup which would be suspicious of any attempt at pluralism.

And in fact, if you look at our history after independence, where you do have plural arrangements like Nagaland and so on, it's come after struggle and often violent struggle where pluralism has been deemed to be a compromise (to protect) the Indian union from a secessionist movement.

Pluralism, in the sense I deal with in the book, is basically territorial pluralism. You have different territories in the Union or in a state; you could have a state with different nations in a state, and by nation here, I mean a group of people bound together by a common history, language and so on.

Institutions like the Election Commission and the Comptroller Auditor General are sometimes called the fourth branch of government. (Image: PTI File)

In the chapter on power confronted, you've talked about the institutions that can help with checks and balances on the legislative and executive branches. Often, these are external or even autonomous institutions themselves that can be vulnerable to pressures, restraints, constraints. What provisions does the Constitution have at this point, or should perhaps have going forward, to prevent the exercise of power in a way that limits the usefulness of these institutions?

The book discusses a very specific set of institutions, which in scholarship we normally call the fourth branch, which is to say that institutions that are tasked with the responsibility of creating an infrastructure through which certain rights can be realized. The classic example is the Election Commission. The Election Commission is not the executive, not Parliament and not the courts. In fact, none of those three bodies can perform that role for obvious reasons. The Election Commission is required to ensure that the right to vote is exercised meaningfully. Other such institutions are the Comptroller Auditor General, the CAG, in the Constitution, various commissions, the Information Commission whose task is to implement the right to information, and so on.

The problem which I discussed in the book is that unlike more modern Constitutions which entrenched many of these institutions in the Constitutional text and guaranteed their independent functioning, the Indian Constitution—in part because of the time in which it was drafted where this vocabulary was relatively unknown—only has two or three such institutions mentioned in the Constitution, which is Election Commission and the CAG and a couple of others.

And even there, it does not guarantee their independence in Constitutional terms. For example, the Election Commission, the Constitution leaves it to Parliaments to make a law regulating the Election Commission, and pending that law, the President will appoint—which basically means executive appoints. So, the Indian Constitution is a very executive-trusting document, which envisages a situation where even the very institutions that are meant to act as checks upon the executive in part ultimately are the creations of the executive in terms of the personnel and the conditions, and so on. Or they exist outside the Constitution, which then makes them very easy to subvert and to take over because then their status is quite fragile. So in that sense, the argument is that bodies like the Information Commission, the Human Rights Commission, and so on, should be given a Constitutional status on par with something like the Election Commission.

Not just that, even for the Election Commission and these other bodies, the Constitution should very clearly demarcate their independent functioning, both in terms of how you appoint the personnel and in how they function. Without that, it becomes straightforward for the executive to control such bodies and that distorts democracy.

Cover of the Constitution of India, 1949. (Image via Wikimedia Commons)

Now, most Indians haven't actually read the Constitution. If you were to summarize, what is it that the private citizen really needs to know about it apart from the fundamental rights chapter?

For most citizens, as I said, your interaction with the Constitution ultimately is at moments of violence or moments of repression, where it's meant to stand as a bulwark against excesses, which is why there is so much focus given to the fundamental rights chapter.

But beyond that, what the citizen needs to know is that a large part of the things that you see happening around you (are because the Constitutional design makes provision for them to happen). For example, the way that certain investigatory bodies are involved in the arrest of, say, political leaders; or the way that governments get toppled mid-term—(not just because) politicians are self-serving or are doing what they're doing to stay in power (though) of course that's a major part of it and agency is important. But to also understand that the Indian Constitution creates certain pathways for, for example, toppling of governments midway in a term or makes it easier for investigatory bodies to incarcerate people for a long time without trial.

So, to understand how the constitutional design enables that to happen. That is what I would say is the big takeaway that I try to provide and what I think the citizens should engage with, to understand what's happening around them.

How did you become interested in constitutional law?

Since I began college in 2006. I was always pretty interested in the way the state organizes power. That's one of the most interesting areas of law, because you're always dealing with history, with politics, with language, with interpretation. And, you know, all the big cases are constitutional cases. So, never a dull moment.

Tell us about a constitutional case that you found extremely interesting.

All the cases I have done have been fascinating for me. And perhaps the most interesting one, because I think the ones closest to our hearts are the ones we argue ourselves, is the one I argued—as one of four counsels—in the Bombay High Court where we had challenged the Fact Check unit that the government had set up to check facts about the government. This was a really interesting free-speech case where we went into the question of whether the government has a monopoly over truth. What does free speech require intermediaries like Twitter and Facebook to do, and so on. We succeeded with that case: the fact-checking unit was struck down by the High Court. It is presently in the Supreme Court on appeal.

You give a lot of examples from other countries. Tell us how you see the Indian Constitution within the larger matrix of Constitutions from around the world? Are there significant differences or points of intersection where you think that it's useful to use examples from other countries? Is this like a best-practices for the Constitution?

They're both. In the sense that constitutional design is something that migrates across the world. So, you're always borrowing. In fact, the Indian Constitution was heavily borrowed. (BR) Ambedkar was criticized, and he said, look, if some other people have done something well, why shouldn't we be borrowing from them? So there are all these crosscurrents.

In terms of where the Indian Constitution would be (in terms of standing vis-a-vis other Constitutions), I think it really depends on when a constitution is drafted. Because the Indian Constitution is now 75 years old and in terms of constitutional thinking, a lot has moved on since then.

This idea that the people should have a role in constitutional governance, the idea of independent-force branch institutions, various things are of relatively more recent vintage. And many of the constitutions that were framed in what we normally call the second wave of post-colonial constitution-making, which is 1990s onwards—South Africa, Kenya, Nigeria, Colombia, Latin America, Jamaica, so on—reflect those insights. In that way, you could say that the Indian Constitution is a bit dated in the ideas that it incorporates. But, of course, many things that are common as well.