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This introductory chapter provides an overview of the Indian Constitution. The Indian Constitution is the longest surviving constitution in the postcolonial world, and it continues to dominate public life in India. It did not descend upon the people; it was produced and reproduced in everyday encounters. From the earliest days of India's independence, citizens' political action influenced the court and reveals a long history of public-interest litigation driven by litigants rather than judges. However, despite the centrality of the Constitution to public and private lives in South Asia, it remains “ill served by historical imagination” and its history understudied. It is partly because Indian constitutionalism defies easy explanations. This book thus traces the process through which the Constitution emerged as the dominant field for politics, breaking new methodological ground by studying the Constitution through the daily interpretive acts of ordinary people as well as judges and state officials.

The Indian Constituent Assembly met between December 1946 and December 1949 in New Delhi to draft a constitution that was finally adopted on 26 January 1950. What one sees in the Indian Constitution is the ultimate triumph of the juridico-epistemological framework of empire, grounded in the discourse of imperial justice as equity with its accompanying figure of the monarch as judge. It was in the Constitution that one can see the mutation of imperial justice as equity from a critical category of anticolonialism to the sovereign legislative category of Indian politics and the final marginalization in the post-independence political formation of the Gandhian discourse of transcendental freedom under which the struggle for independence had been largely carried out. However, it is argued that even as the Gandhian discourse of transcendental freedom came to be marginalized, its legacy survived in the form of an unqualified recognition of universal adult franchise in the Indian Constitution.

This epilogue highlights the three connected themes that emerge from the cases studied in this book: the process through which the Indian Constitution emerged as an organizational assumption and a background threat for the state; the greater acceptability of procedural over substantive challenges to government action; and the origins of constitutional consciousness among certain citizens. Constitutional law became the field in which citizens marked as deviant in the new order could recast themselves as virtuous constitutional actors. These citizens differed in the extent of their marginality. However, all their cases carved out rules and norms that benefited a larger populace. Regardless of the court's judgments, people created and disseminated their own meanings of the Constitution, which may even be a successful insurgent and displace the elite conception of the law.

This chapter explores the liminal spaces of citizenship that emerged in the interregnum between the enforcement of the Citizenship provisions as contained in the Constitution of India and the enactment of the Citizenship Act of 1955 through a study of archival material, primarily files pertaining to citizenship in the Indian Citizenship section of the Home Ministry in the 1950s, citizenship laws, and court judgments. The chapter argues that: (1) in the interregnum between constitutional provisions (1950) and the Citizenship Act (1955), citizenship in India occupied a zone of liminality; (2) the liminality of citizenship accrued from the fact that the interregnum embodied the threshold space between the nation-state and state-formation/making; (3) the occupation of a liminal space attributed citizenship with indeterminacy and ambiguity; (4) ‘registered/alien/Pakistani women/wives’, ‘minors’, and ‘displaced persons’ were liminal categories, in the sense that they signified both the uncertainty of the moment of passage and the change in status that such passage was to bring with it; and (5) the liminal state of citizenship was fraught with contests over precise legal categories in the absence of/in anticipation of the Citizenship Act and was imbricated in processes of state-formation and issues of national belonging.

This interview of Soli Sorabji focuses on the strengths and weaknesses of the Indian Constitution. Looking at the different facets of the Constitution, it tries to assess the need for it to be rewritten. Soli Sorabji insists that the people, and not the institutions provided by the Constitution, are to be blamed for failing to achieve the basic aims of the Constitution. In the course of this interview, he also discusses the legal aspects of death penalty, homosexuality, public awareness, and the right to privacy.

This chapter attempts to answer the following questions: how should Indian courts do comparative constitutional law? What precise role should comparative materials play in the interpretation of the Indian Constitution? Is their use simply rhetorical? Is the citation of comparative materials a judicial attempt to assert India's membership in the family of liberal democracies? Is legal globalization the counterpart to economic globalization? Does the practice of cosmopolitan citation suggest that Indian constitutional adjudication is part of a trans-national conversation on the relationship between rights, democracy, courts and the rule of law that knows no jurisdictional boundaries? Is the Indian Constitution merely a legal means to implement rights that exist independently and apart from the Indian constitutional order? Or is comparative analysis entirely inappropriate to the interpretation of a document which has been seen as India's ‘first real exercise of political self-determination’? The author offers a provisional answer to these questions, by puzzling through the recent judgment of the Delhi High Court in Naz Foundation v. Union of India in which the court used comparative constitutional law in an big way. In doing so, the author engages in two debates which are the subject of the chapter: the role of comparative materials in constitutional interpretation, and to change how we situate India in the field of comparative constitutional law. The chapter provides a detailed discussion of dialogic interpretation as opposed to a universalist interpretations of constitutional law.

The fact that the Indian Constitution is one of the most elaborate in the world does not imply that it does not have in addition tacit provisions. It is based on the recognized conventions of a parliamentary form of government which it establishes both at the Centre and in the States. For quite some time people, politicians, and others professed not to see anything but the written word, and rejected the conventions altogether. This chapter discusses how the Supreme Court has very clearly given legal recognition to constitutional conventions concerning the parliamentary system of government. In other words, the court has recognized that the provisions of the Constitution are based on certain British conventions regarding the cabinet and that to ignore the latter would be to misinterpret the former.

During the brief fifty years that Indians have held the reins, they have governed themselves successfully against awesome odds. The seamless web woven by the Constituent Assembly into the Constitution for the nation — establishing the institutions and spirit of democracy, pursuing a social revolution to better the lot of the mass of Indians, and preserving and enhancing the country's unity and integrity — is intact, having recovered from the terrible distortion of the Emergency. Distortions such as overzealous pursuit of one strand or laxness toward another continue to be produced by the country's conditions and culture and by human frailty. Still, representative democracy is popular and firmly established and that the Constitution has become ‘the authentic reference scale for political behaviour’.

This chapter examines the concept of equality for persons with disability in the context of the Persons with Disabilities (PWD) Act of 1995 in India. It suggests that while the PWD Act is possibly the first anti-discriminatory piece of legislation in India for persons with disabilities, it is limited in scope as it does not make out a full case for equality for all persons with disability. It proposes the application of the principle of substantive equality to address the flaws of the PWD Act and reviews how equality and non-discrimination under the Indian Constitution have been interpreted in some Supreme Court cases in the field of disability. It argues that argues that disability can be considered as a ground analogous to the enumerated grounds for discrimination under Article 15(1) and, therefore, can be appropriately considered as a marker for non-discrimination.

This chapter describes the scope of the book as well as the motivations for its creation. This is a history book of how the Indian Constitution developed from 1950 to 1985. It is a history about what good and bad things human beings do while governing themselves. While providing an account of the Constitution of India, the discussion argues that it should be the Indians who must speak for themselves. It attempts to bring out the significance of certain developments and their growth into trends. The rest of this chapter offers a few caveats, including the use of the terms ‘governance’, ‘council members’, and ‘cabinet’.

The introductory chapter discusses the various aspects of the history of democracy in India. This volume reviews research on themes that are considered to constitute a major shift or departure from the earlier pattern of politics and political processes in India. The chapter includes debates on Indian democracy, public institutions in theory and practice, federalism, party politics, the Indian Constitution, and civil society initiatives. It also discusses the views of several analysts including Sumit Ganguly, Atul Kohli, and David Held about their concept of a successful democracy.

This chapter reviews the history of India’s federal structures. It provides an overview of political developments during the British period and describes the issues concerning federalism as they arose during the drafting of the Indian Constitution and the resolution of those issues in the Constitution. It describes the changes in Centre–state relations after the adoption of the Constitution in 1950 and discusses the history of local government in post-independence India. It also identifies the centripetal bias in India’s federal structures and illustrates how these have played out in practice.

This chapter discusses the constitutional provisions of Article 22 of the Indian Constitution; judicial prescriptions of procedural safeguards; judicial philosophy in preventive detention cases; the need to review certain aberrations from the commendable judicial philosophy; and executive apathy in enforcing amendments made to Article 22 of the Constitution. Viewed in the right perspective, procedural safeguards incorporated in the Constitution and the decisional law pertaining to them are obviously not meant to let off the hook a detained person, notwithstanding strong grounds of suspicion against him, but to give him a fair chance to make his representation considered.

This chapter begins developing the negative claim made by the book: the HRA does not enable legislatures to assert their understandings of rights more freely than judicial supremacy under the Indian Constitution. Political practice shows that it is similarly burdensome to respond to declarations of incompatibility in the UK as it is to respond to strike-downs in India. In the Indian context, constitutional amendments of two kinds (referred to as ‘fundamental rights amendments’ and ‘Ninth Schedule amendments’) have been invoked by Parliament to respond to judgments striking down primary legislation. In the UK, Parliament has some room for manoeuvre when responding to declarations of incompatibility, and even though no such declaration has yet been rejected outright, such a rejection cannot be ruled out.

This chapter discusses freedom of speech and expression as treated in the First and Sixteenth Amendments. Soon after the Constitution's inauguration, India added its name to the long list of democracies whose constitutional ideals were tested against the government of the day's perception of national needs. Protecting national integrity through preserving political stability was thought to be in conflict with the democratic rights to freedom of expression and personal liberty. The social revolutionary goals of the Directive Principles of State Policy were found to conflict with the right to property. During the Nehru years, remedies for these conflicts were sought, in part, through the First, Fourth, Sixteenth, and Seventeenth Amendments to the Constitution. The chapter concludes with an issue of personal liberty covered by the Fundamental Rights, preventive detention, although instituting preventive detention did not involve constitutional amendment.

India was not, and its peoples were not, one at the republic's beginning, which made the leaders anxious and focused their minds on achieving unity. President Radhakrishnan warned the country that petty considerations, factions, and caste disputes raised ‘doubts about the stability of a united, democratic India’. The leaders' anxieties can be argued to be overdrawn. The compartmentalization of society impeded national integration, but did not endanger the country's unity and integrity, and the forces for unity operating in the country were stronger and more numerous than the forces against unity. This chapter looks at the uses of the Indian Constitution's provisions that deal with centre-state relations in the service of national unity and integrity. It discusses the Constitution's part in fostering unity. The last section describes the machinery for unity, the Constitution's centre-state relations provisions.

This chapter discusses the codification of conventions. It describes how in 1949, the framers of India's Constitution let the nation down in one aspect crucial to the success of parliamentary democracy – namely, a code of conventions to guide the president and the governors in the exercise of their constitutional powers. It was contemplated at every stage but was abandoned in the final moments. Governors have therefore felt themselves free to act as the Centre directs them, while presidents have been capricious. The chapter suggests that such an undertaking has become necessary.

This chapter shifts the focus of the book to the positive claim: that the remedial scheme under the HRA enables courts in the UK to assert their genuine understandings of rights more freely than Indian courts. Three pairs of examples, each consisting of one case from India and the UK, are relied upon as evidence of the claim that Indian courts make their decisions about the rights implications of legislation in the shadow of the power to strike down legislation, withholding their genuine understandings of rights from time to time. In analogous situations, British courts carry through their rights reasoning by making declarations of incompatibility. Textual and institutional constraints suggest that the Indian Supreme Court would be unwilling to exercise remedial discretion to issue ‘intermediate remedies’ seen frequently in many other jurisdictions, such as suspended declarations of invalidity or informal declarations of incompatibility.