Indian Constitutional Principles and Structure May Need a Rethink | Latest Indian News

This year marks the 75th anniversary of the Constitution. The Constitution, which was drafted over a period of three years, during the turmoil of partition and the annexation of the princely states to India, was a remarkable achievement for its time; no less remarkable is the fact that it lasted 75 years (the average lifespan of constitutions is less than two decades). In many ways—such as granting universal adult suffrage in one fell swoop, or abolishing untouchability and forced labor—the Constitution was a leap of faith that expanded the horizons of social and political imagination in the young nation. State.

However, the 75th anniversary is also a chance to think critically about the structure and design of the Constitution and to ask whether some of these design choices might require closer examination. The framers of our Constitution faced numerous challenges of enormous proportions: problems of poverty and illiteracy, communal violence and deep social inequality. Therefore, they believed that strong leadership was needed to solve these problems at the speed and scale they required. Thus, although the Constitution formally guaranteed a parliamentary and federal structure of government, in the fundamental principles of its construction it was heavily biased towards the executive branch.

Let us first consider the question of parliament. In parliamentary systems in general, the executive and legislative powers are partially fused, and when elections produce clear results, the former tends to dominate the latter, although the executive is formally “responsible” to parliament. To mitigate this shift towards the executive, parliamentary systems provide a number of mechanisms: for example, an independent Speaker of the House, whose role is to protect and represent the interests of parliament before the executive; some (limited) space for the opposition to set the agenda on certain days; places where the opposition can criticize the performance of the executive, both in the House of Representatives (for example, through Prime Minister’s Questions) and elsewhere (through parliamentary committees). Bicameral systems have the additional check of the upper house on executive dominance.

However, while the Constitution codified many aspects of government, it remained remarkably silent on enshrining certain features that would guarantee Parliament’s independence from the executive. Moreover, given that in colonial times the British executive was structurally designed to dominate provincial and central legislatures, there was no long-standing set of conventions guaranteeing parliamentary independence (as in Britain). The combination of these factors meant that the Indian Parliament was born as a structurally weak institution whose functioning depended on the good will of the executive. The results of these design decisions are with us today.

Likewise, with regard to federalism, the Constitution appears to view the states as administrative units rather than as repositories of linguistic or cultural identity. This is evident in the way it allows Parliament to reshape the federal map at will, the way it shifts legislative, administrative and financial powers towards the Center and the way it entrenches the role of colonial-era governors in a post-colonial dispensation. . This may have been understandable at the time of independence, when the state boundaries of the newly independent India reflected the British administrative units. However, from the very beginning this position changed: indeed, the first reorganization of states took place on a linguistic basis after strong social movements. In 2024, it should be clear that states are more than just administrative units: they reflect a genuine desire for internal self-determination within India’s territorial boundaries. However, the constitutional design continues to reflect the old model, as evidenced by the ongoing controversies over the role of the Governor, conflicts over the distribution of revenue (especially GST revenue), and the legislative and administrative dominance that the Union continues to exercise. . So we must ask whether this structural imbalance is compatible with the truly federal system we strive for.

Moreover, although the Constitution also reflects pluralism within the country through “asymmetrical federal” arrangements for some states, these arrangements were accepted reluctantly and often as political compromises to prevent more militant solutions (as in the case of Manipur and Nagaland). . The dominant constitutional vision still appears to favor homogeneity and uniformity, as reflected in the Supreme Court’s decision to uphold the de facto repeal of India’s most prominent example of asymmetrical federalism, Article 370.

Classical constitutional theory divides the power of the state between three branches of government – executive, legislative and judicial. However, it has long been realized that the complexities of the modern state require the existence of a fourth branch of independent institutions that perform certain vital functions that require them to be independent of the executive branch. Examples include Election Commission, Human Rights Commissions, Information Commissions, etc.; these bodies are often tasked with holding the executive accountable or providing the infrastructure for important rights (such as voting rights). Therefore, many modern constitutions specifically provide for the independence of these fourth branch institutions. However, the Indian Constitution, in its vision of trust in the executive, either does not enshrine the institutions of the fourth branch of government at all, or – as in the case of the Election Commission – does not provide adequate guarantees for their separation from the executive, especially in matters of appointments. . Thus, long-standing concerns about the neutrality of the Election Commission and executive interference in other bodies such as the Central Information Commission can be traced back to the constitution itself.

Finally, although the Constitution is enacted in the name of the people, it deprives the people as collective subjects of the opportunity to participate in public affairs through constitutional channels and to act as an external check on the executive; there are no guarantees of public participation in lawmaking, resulting in a top-down process that actively discourages consultation with communities and groups particularly affected by government actions.

Thus, looking back over the last 75 years, we see that there is a lot to celebrate in the Indian Constitution. However, we must also refrain from hagiography and recognize that the Constitution is – for various reasons – a centralizing and executive-oriented document. While there may have been reasons for this in 1949, there needs to be a public debate about whether those reasons persist and what an alternative constitutional vision might look like.

Gautam Bhatia is a lawyer based in New Delhi. The themes of this article are explored in more detail in his forthcoming book, The Indian Constitution: A Conversation with Power (HarperCollins, 2025). The opinions expressed are personal.