aENt s NSy uTL eash wh, ER Ono Rtw BS “SE e$s Stet aS Seite AS ESSoS * P N ed 4 z ee ——e\e Sh eeg Nz eg»o w & any; 4 = oey PS WAe eee van r a e “AL e + e ‘ Pe ‘‘ a 4 7 Noe s : : / A Wek ayes I S AY SAxwy , i y a £5 flA a*nn S Indias Living Constitution IDEAS, PRACTICES, CONTROVERSIES Editedb y ZOYA HASAN ® E. SRIDHARAN ® R. SUDARSHAN Ot ey... j— 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