The Indian Constitution through the Lens of Power – V: The People

—Gautam Bhatia, Advocate, New Delhi, and independent legal scholar

[Editor’s Note: This is one of our ICONnect columns. For more on our 2023 columnists, see here.]

The previous four posts in this series have examined the Indian Constitution as a terrain of contestation around three axes of power: federalism, legislative/executive relations, pluralism, and guarantor institutions. In this penultimate post, I will examine the fifth axis: the People. 

As with most other modern Constitutions, the Preamble of the Indian Constitution begins with a ringing declaration: “We the People of India … adopt, enact, and give to ourselves this Constitution.”[1] Through a legal/constitutional fiction, the People are deemed to be the authors of the Constitution. However, is there any role for the People beyond this titular invocation?

One obvious role – although it is not stated as such within the constitutional text – is the electoral one: periodically, the People are engaged in voting in – and voting out – their representatives, and thus constituting the legislature at both the central and at the state level. Roberto Gargarella helpfully distinguishes between a constitutional vision where the popular accountability over representative institutions is limited to periodic elections, with the different wings of State checking each others’ powers in the intervening period; and a constitutional vision where popular accountability extends beyond elections, through processes such as legislative recall, referenda, and so on.[2] The Indian Constitution subscribes to the first vision. This is buttressed by the fact that specific proposals for popular accountability – such as a right of recall – were brought to the floor of the Constituent Assembly and explicitly rejected.[3]

Beyond this accountability function, let us examine the role of the People through the lens of three categories: constitutional change, legislative functions, and executive/administrative functions.

First, the People may be involved in the process of constitutional change. Certain Constitutions, for example, mandate a popular referendum for specific categories of constitutional amendments. In addition, certain Constitutions provide a pathway to amendment via the People, through mechanisms broadly grouped under the heading of “popular initiatives.”[4]

Secondly, the People may be involved in the process of legislation. Certain Constitutions mandate “public participation” as a pre-requisite for legislation. In recent years, courts have been engaged in interpreting public participation mandates in concrete terms: for example, how much time ought to be given for public comments on a draft bill? In how many languages ought a draft bill be published? How can one ensure that participation is meaningful, and not merely a check-box exercise, while retaining the efficiency of the parliamentary process?[5]

And thirdly, the People may be involved in the process of executive action. This is of special relevance where, for example, large development projects with serious environmental consequences are concerned: many modern Constitutions – especially in Latin America, where extractivism has been a bitterly contested issue – have meaningful consultation requirements with affected people, in situations such as these.[6] Indeed, this norm of consultation with indigenous groups is also found in international law, in instruments such as ILO Convention 169.

In this context, what is striking about the Indian Constitution is the complete absence of the People at any of these stages. A part of the reason for this (as in the case of guarantor institutions) is the age of the Indian Constitution: public participation as a constitutional principle is a relatively recent addition to global constitutionalism, which has hitherto been focused on representative democracy. Beyond that, however, an examination of constitutional history reveals that the framers of the Indian Constitution were never entirely comfortable with the prospect of an expanded role for the People as direct participants in the constitutional project (there were even objections to granting universal suffrage in one go). A combination of factors, therefore, led to the creation of a constitutional design that excludes the People as actors within the Constitution.

As with the case of guarantor institutions, this understanding has changed over time. However, once again, the response has been not to entrench public participation through a constitutional amendment, but to create a limited space for it through legislation. For example, the Forest Rights Act (enacted in 2007) makes community consent a necessary pre-requisite for developmental projects on forest land. In specific contexts, executive orders exist that mandate consultation as part of the process for clearance for developmental projects. However, this patchwork quilt of legislation and executive orders suffers from numerous problems. First, they remain isolated and limited to the specific contexts in which they operate; secondly, without a constitutional anchor, the exact scope and nature of these guarantees remains subject to legislative or executive discretion; and thirdly, legislation – and even more so, executive orders – are particularly easy to amend or repeal, leaving the right to public participation at the mercy of either the government, or (at present) a Parliament that has increasingly come to resemble a rubber-stamp, rather than a deliberative body (see, e.g., the prior post in this series on the executive and the legislature). This is especially true in the environmental context, where the role of the People has been effaced through simple changes in executive orders.[7]

The absence of constitutional anchor is starkly revealed in attempts to constitutionalise the right to public participation through litigation: these attempts have largely been abortive. The landmark Olga Tellis case of the Supreme Court – dealing with the issue of evictions and rehabilitation – cited a constitutional right to livelihood, but limited constitutional remedies to that of a Notice (which, in turn, could be dispensed with in certain circumstances).[8] Subsequent cases have, largely, been unable to move beyond the four corners of Olga Tellis, and the odd High Court judgment that has done so has failed to become an enduring part of constitutional jurisprudence. Indeed, a recent direct attempt to constitutionalise public participation in the case of the rebuilding of the capital city’s parliament building and the surrounding areas, was rebuffed by the Supreme Court.[9] While the Court acknowledged a right to participation in the abstract, the absence of any constitutional or legislative anchor allowed it to avoid answering the question of how it was to be instantiated in a particular case.

In sum, therefore, even as the Constitution begins with an invocation to the People, as power-holders, the People are then sent off-stage: they are spoken for by representative institutions, but do not themselves speak in the processes of constitutional and public action.

Suggested citation: Gautam Bhatia, The Indian Constitution through the Lens of Power – V: The People, Int’l J. Const. L. Blog, Dec. 25, 2023, at: http://www.iconnectblog.com/the-indian-constitution-through-the-lens-of-power-v-the-people/

[1] Preamble, Constitution of India.

[2] Roberto Gargarella, Latin American Constitutionalism, 1810 – 2010: The Engine Room of the Constitution (OUP 2013).

[3] Parliament of India, Constituent Assembly Debates, Vol. VII (29 November, 1948).

[4] Article 257, Constitution of Kenya 2010.

[5] Doctors for Life International v Speaker of the National Assembly, 2006 (12) BCLR 1399 (CC).

[6] Article 395(3) & 398, Constitution of Ecuador 2008; for the most recent interpretation of these clauses, see Sentencia No. 1149-19-JP/21, Constitutional Court of Ecuador. For a discussion of the slippages between consultation and consent in this context, see Juan C. Herrera, “Judicial Dialogue and Transformative Constitutionalism in Latin America: the Case of Indigenous Peoples and Afro-descendants”, (2019) 43 Revista Derecho del Estado 191. Thea Riofrancos, Resource Radicals: From Petro-Nationalism to Post-Extractivism in Ecuador (Duke University Press 2020).

[7] See e.g. Hanuman Laxman Aroskar vs Union of India, (2019) 15 SCC 401.

[8] Olga Tellis v Bombay Municipal Corporation, AIR 1980 SC 186.

[9] The present author was a counsel in the case.