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Indias Living Constitution
IDEAS, PRACTICES, CONTROVERSIES
Editedb y
ZOYA HASAN ® E. SRIDHARAN ® R. SUDARSHAN
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a permanent black
Published by
PERMANENT BLACK
D-28, Oxford Apartments, 11 1.P. Extension,
Delhi 110092
Distributed by
ORIENT LONGMAN LTD
Bangalore Bhubaneshwar Chandigarh Chennai
Ernakulam Guwahati Hyderabad Jaipur Kolkata
Lucknow Mumbai New Delhi Patna
Copyright © 2002 individual contributors for each essay
Copyright © 2002 (volume form) University of Pennsylvania Institute
for the Advanced Study of India
ISBN 81-7824-035-1
sainh otno n
Typeset in Adobe Garamond by Eleven Arts, Delhi 110035
and printed by Pauls Press, New Delhi 110020
Binding by Saku
Contents
Preface Vii
Notes on Contributors x
INTRODUCTION
, aa Civilization, Constitution, Democracy
| Satish Saberwal l
I. OVERVIEW
2. The (Im)possibility of Constitutional Justice:
Seismographic Notes on Indian Constitutionalism
Upendra Baxi Bt
raTh e Indian Constitution and Democracy
Sunil Khilnani 64
4 The Nation and the State in India: A Difficult Bond
Javeed Alam 83
II. ORGANISING PRINCIPLES
v. India’s Secular Constitution
Rajeev Bhargava 105
How Has the Proliferation of Parties Affected the
Indian Federation?: A Comparative Approach
Douglas V. Verney 134
We ‘Stateness’ and Democracy in India’s Constitution
R. Sudarshan 159
vi CONTENTS
8/ The Inner Conflict of Constitutionalism: Judicial
Review and the ‘Basic Structure’
ae
Pratap Bhanu Mehta
III. RIGHTS AND JUSTICE
9. Individual and Group Rights: A View From India
Neera:Chandhoke
10. Sex Equality, Liberty, and Privacy: A Comparative
Approach to the Feminist Critique
Martha C. Nussbaum
IV. EQUITY
11. The Pursuit of Social Justice
A. Vaidyanathan 284
12. The Long Half-life of Reservations
Marc Galanter 306
V. INDIA’S POLITY
13. The Expected and the Unintended in Working a
Democratic Constitution
Granville Austin é 319
14, The Origins of the Electoral Systern: Rules,
Repareessen tation, and Power-sharing g in India’s Democra cy
E. Sridharan 344
15. Decentralization and Local Government:
The ‘Second Wind’ of Democracy in India
Peter Ronald deSouza 370
16. The ‘Politics of Presence’ and Legislative Reservations
for Women
Zoya Hasan 405
Index 428
Preface
his volume originated in the felt need for an exploration of the
terms of discourse in Indian constitutionalism and politics at the
turn of the century and millennium, the completion of fifty years of
the existence of the Indian constitution, and a little over half a century
of Indian independence. An earlier book—the one that provided inspi-
ration for this enterprise—though sharing points in common, is very
different from our volume: TV. Sathyamurthy’s four-volume work titled
Social Change and Political Discourse in India: Structures ofP ower, Move-
ments of Resistance (Delhi: Oxford University Press). The Sathyamurthy
project was conceived as a large collective at the end of the 1980s against
the backdrop of four decades of Congress Party hegemony in indepen-
dent India, a bipolar world order with India situated in the non-aligned
space, four decades of slow growth in a state-regulated import-substitu-
tion-oriented mixed economy, and a decade and more of subaltern
social movements.!
The political landscape a decade later, in the early years of the new
century, was so different as to be almost unrecognizable. While the
constitution completed fifty years on 26 January 2000 with its basic
structure intact, India had five general elections from late 1989 to late
1999, all resulting in hung parliaments, leading to over a decade of
mostly minority and/or coalition governments. Since 1996, India has
had the largest coalition governments, in terms of the number of parties,
in the world. Since 1998, the ruling coalition has been led by the
Bharatiya Janata Party (BJP), which had never crossed the ten percent
vote share mark until November 1989, but has since risen to almost a
quarter of the vote and the status of single largest party in the lower
house of parliament. This is also a party whose ideology is essentially
Vil
‘
viii PREFACE
at odds with the secular, liberal-pluralist vision and basic structure of
the constitution. Indeed, the BJP-led National Democratic Alliance
government set up a National Committee to Review the Working of
the Constitution, as an. executive decision, bypassing parliament and
initiating a move opposed by the major opposition parties. This committee
presented its report two years later, in early 2002.
Along with this development has been the decline of the Congress
Party, still the largest in vote share, to a little over a quarter of the vote,
and second in seats, and the rise of a diversity of single state-based
parties. These developments have been paralleled by the rise of new
social movements and currents—the Hindutva ideology of the BJP
and its allied organizations; the political assertiveness of the Other
Backward Classes (really castes) and Scheduled Castes, and a powerful
secessionist movement in Kashmir. They have also been paralleled by
over a decade of economic liberalisation since 1991 (still continuing),
an associated burgeoning of the middle classes and integration with the
world economy, and the growth of cable and satellite television and
international cultural and ideological influences as a part of globalisation.
All this has been in the context of the collapse of the bipolar world
order and the rise of unchallenged Western dominance, led by the United
States, the collapse of authoritarian regimes of diverse kinds, and the
spread of democracy around the world.
Against this background, it was felt that fifty years of the Indian
constitution and democracy—a major achievement in a developing
country without the generally accepted prerequisites for stable democ-
racy, and one that requires an explanation by social scientists—required
an exploration of the terms of discourse of Indian constitutionalism
and politics as well as analysis of the career of the democratic ideas,
organizing concepts and vision explicitly present in, or implied in, the
constitution. The idea originated with R. Sudarshan, Zoya Hasan and
Satish Saberwal, later including E. Sridharan, and was hammered out
over several meetings in 1999. The University of Pennsylvania Institute
for the Advanced Study of India (UPIASI) took it up as a project. The
Ford Foundation agreed to support the project financially, making a
grant to the Center for the Advanced Study of India (CASI), University
of Pennsylvania, which subcontracted the grant to UPIASI. UPIASI
organized an international conference, which was held over 23-25
