India’s constitutional tenets, structure may need reflection

While there may have been reasons to draft an executive-oriented documented in 1949, a public debate is needed on what an alternative constitutional vision might look like

This year marks the 75th anniversary of the Constitution. The Constitution – which was framed over a period of three years, and during the tumult of the Partition as well as the incorporation of the princely states into India – was a remarkable achievement for its time; the fact that it has endured for 75 years (the average lifespan of Constitutions is less than two decades) is equally remarkable. In many ways – such as the grant of universal adult suffrage in one stroke, or in its abolition of untouchability and forced labour – the Constitution was a leap of faith, which expanded the horizons of social and political imagination in the newly-born nation-State.

The Constitution was framed over a period of three years, during the tumult of the Partition (HT Archive)

The occasion of 75 years is also a chance, however, to reflect critically on the Constitution’s structure and design, and to ask whether some of those design choices might call for greater scrutiny. The framers of our Constitution were faced with numerous problems, on a vast scale: Problems of poverty and illiteracy, of communal violence, and of deep social inequalities. They, therefore, believed that a strong executive was necessary to tackle these problems at the speed – and at the scale – that they demanded. Thus, while the Constitution, in formal terms, guaranteed a parliamentary and federal structure of government, in the fundamental principles of design, it skewed heavily towards the executive.

Consider, first, the question of Parliament. In parliamentary systems in general, the executive and the legislature are partially fused, and when elections throw up clear results, the former tends to dominate the latter even though, formally, the executive is “responsible” to Parliament. To mitigate this drift towards the executive, parliamentary systems provide a number of mechanisms: for example, an independent Speaker of the House, whose role it is to defend and represent the interests of Parliament to the executive; some (limited) space to the Opposition to set the agenda on certain days; spaces where the Opposition can critique the executive’s record, both on the floor of the House (such as through Prime Minister’s questions), and elsewhere (through parliamentary committees). Bicameral systems have the additional check of an Upper House on executive dominance.

However, even as the Constitution codified many aspects of governance, it maintained a conspicuous silence on entrenching some of the features that might have guaranteed parliamentary independence from the executive. Furthermore, given that in colonial times, the British executive was structurally designed to dominate the provincial and central legislatures, there was no long-standing set of conventions guaranteeing the independence of Parliament (as in Britain). A combination of these factors meant that the Indian Parliament was born a structurally weak institution, depending on the goodwill of the executive for its functioning. The results of these design choices are with us today.

Similarly, on the question of federalism, the Constitution seems to treat states more as administrative units rather than as repositories for linguistic or cultural self-determination. This is evident from how it grants to Parliament to rearrange the federal map at will, how it skews legislative, administrative, and fiscal powers towards the Centre, and how it entrenches the role of colonial-era governors in the post-colonial set-up. This might have been intelligible at the time of independence, when the state boundaries of newly independent India reflected British units of administrative governance. From very early on, however, that position changed: indeed, the first reorganisation of the states was on linguistic basis, after strong social movements. In 2024, it should be clear that the states are a lot more than just administrative units: they reflect genuine aspirations for internal self-determination within the territorial borders of India. The constitutional design, however, continues to reflect the old model, as is evident from enduring controversies over the role of the governor, conflict over the distribution of revenue (especially GST revenue), and the legislative and administrative dominance that the Union continues to exercise. We must therefore ask whether this structural skew is compatible with a truly federal system that we aspire towards.

Furthermore, while the Constitution also reflects the pluralism within the country through “asymmetric federal” arrangements for certain states, these arrangements have come grudgingly, and often as political compromises in order to prevent more militant solutions (as in the case of Manipur and Nagaland). The dominant constitutional vision appears to still be in favour of homogeneity and uniformity, as was reflected in the Supreme Court’s decision to uphold the effective abrogation of the most prominent example of asymmetric federalism in India – that of Article 370.

Classic constitutional theory divides the powers of the State between three branches – the executive, the legislature, and the judiciary. However, it has long been understood 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. Examples include the Election Commission, human rights commissions, information commissions, and so on; these bodies are often tasked with holding the executive accountable, or implementing the infrastructure of important rights (such as the right to vote). Many modern Constitutions, therefore, specifically provide for the independence of these fourth branch institutions. The Indian Constitution, however, in its executive-trusting vision, either does not entrench fourth branch institutions at all, or – as in the case of the Election Commission – fails to adequately guarantee their separation from the executive, especially in the matter 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 constitutional design itself.

And finally, although the Constitution is enacted in the name of the people, it excludes the people, as collective actors, from engaging with public affairs through constitutional channels, and acting as external checks upon the executive; there are no guarantees of public participation in law-making, leading to a top-down process that actively discourages consultation with communities and groups specially affected by the actions of the State.

Thus, as we look back on the last 75 years, there is much to celebrate about the Indian Constitution. We must also, however, refrain from hagiography, and recognise that the Constitution – for various reasons – is a centralising and executive-oriented document. While there may have been reasons for that in 1949, a public debate is needed about whether those reasons still hold – and what might an alternative constitutional vision look like.

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