programme

Indian Constitution and Politics

Home/ Indian Constitution and Politics
Course TypeCourse CodeNo. Of Credits
Foundation CoreNA4

Semester and Year Offered: Monsoon semester 2019

Course Coordinator and Team: Dr. Anushka Singh

Email of course coordinator:anushka@aud.ac.in

Pre-requisites: None

Aim: This is a Major Course for student of B.A. in Law and Politics and would serve as their first formal introduction to the intersection of law and politics through a detailed study of the Indian Constitution- history, its design and working. An understanding of the constitution, the constitutional discourse and a critical engagement with the same is imperative for any student pursuing a degree in Law and Politics. This course aims to provide students the opportunity to develop that understating which in turn would serve as a building block for other specialized courses that follow.

Course Outcomes:

On the successful completion of the course students would be able to

  1. Demonstrate an understanding of the Constitution of India and how constitutional governance is carried out in India
  2. Demonstrate knowledge of the Fundamental Rights and Duties of the Citizens as well as the Obligation of the state towards its citizens
  3. Demonstrate familiarity with key political developments that have shaped the Constitution and amended it from time to time.
  4. Equip themselves to take up other courses in law after having done a foundation course on Indian Constitution

 

Brief description of modules/ Main modules:

The attempt of this course is to combine a legal perspective on constitutional democracy in India with political history and practice. This implies relating the textual provisions of the constitution with the socio-political contexts of their origin and looking at how the constitutional history and practice have been informed by the politics and vice versa. The course begins with a discussion on the birth of the constitution with an intricate co-existence of colonial antecedents and transformative visions. The course then focusses on two aspects of the constitution- (i) the three institutions of constitutional governance- legislature, executive and judiciary; (ii) the notion of rights and obligations emerging from the texts. The latter half of the course focuses on constitutional confrontations that are essentially a result of the structural design but their manifestations are conditioned by the political context. While the focus of the course remains on the foundational moment, that is, the structure and design of the themes taken up in the course and analysed through a study of Constituent Assembly debates and the textual provisions of the Constitution, the course persistently brings in the political context to give meaning to the legal texts. Each module also tries to briefly look at the post-independence evolution of the constitutional themes- institutions, rights, structures- to subject the foundational moment to the scrutiny of practice.

Module 1- Antecedents of the Constitution, the legal and the political

Keeping the centrality of the claim intact that the adoption of the Constitution ushered in a new socio-political order typifying the foundational moment of democracy in India, this module engages with the politico-legal developments of the colonial times that found their way into the text of the democratic constitution. The module discusses the colonial legislations and charters that marked the beginning of constitutionalism in India with particular emphasis on the Government of India Acts and the Indian Independence Act as well as the early attempts at constitution making within the anti-colonial discourse such as the Motilal Nehru Draft Constitution and the Sapru Committee Report. The attempt of the module is to engage with the notions of colonial continuities and departures that defined the political moment of transformation at the dawn of independence.

1 Week

Readings:

  • Arun Thiruvengadam, 2018, Origin and Crafting of the Constitution, in The Constitution of India, a Contextual Analysis, Hart Publishing, pp. 11 to 36.
  • Rohit De, 2016, Constitutional Antecedents, in Sujit Choudhryet al, The Oxford Handbook of the Indian Constitution, New Delhi: OUP, pp. 17- 37.

 

Module 2- Constituent Assembly Debates: Philosophy and the Politics

The Constituent Assembly Debates have been a matter of diverse interests and form a central problematic for an array of themes such as transformation, post-colonial imagination, deliberation, representation, besides being a subject of study for various approaches on textual analysis and interpretation. Drawing upon these themes, this module would engage with the questions concerning the larger constitutional philosophy, constitutional goals and the notion of the political being envisaged in the text of the constitution.Specific debates regarding various provisions of the constitution are part of the other modules.

1 Week

Readings

  • Granville Austin, 1966, Indian Constitution, Cornerstone of a Nation, OUP, pp. 1- 62
  • Dr. Ambedkar's Last Speech in the Constituent Assembly on Adoption of the Constitution (November 25, 1949)

 

Module 3- Institutions of Constitutional Governance

This module focuses on the institutionsentrusted with the role of constitutional governance in India namely the Legislature, the Executive and the Judiciary while looking at the rationales that emerged in the CAD informing the structures of these institutions. The preference towards a Westminster form of government with modifications, the power of judiciary to be the guardian of the constitution without opting for the American style of judicial review, the changing role of Parliament, etc. are all questions concerning the formal design of these institutions, the constitutional provisions sanctifying them as well as the political role assigned to them. These questions with reflection in the module.

3 weeks

Primary Texts:

  • Article 52-53, Chapter I(The Executive), Part V, Constitution of India
  • Article 74-75, Chapter I (The Executive), Part V, Constitution of India
  • Article 79- 81, Chapter II (Parliament), Part V, Constitution of India
  • Article 131, 132, 133, 134, Chapter IV (The Union Judiciary), Part V, Constitution of India

 

Readings

  • Granville Austin, 1966, Indian Constitution, Cornerstone of a Nation, OUP (selected extracts between pp. 145- 230).
  • S.K. Chaube, The Executive, Making and Working of Indian Constitution, NBT, pp. 81- 127
  • Arun Thiruvengadam, 2018, the Executive and the Parliament, The Constitution of India, a Contextual Analysis, Hart Publishing, pp. 39- 68.
  • Pratap Bhanu Mehta, 2005, India's Judiciary: the Promise of Uncertainty, in Public Institutions in India: Performance and Design, OUP.
  • Arun Thiruvengadam, 2018, SC and its Role as the Guardian of the Rights provisions (1950-2016), The Constitution of India, a Contextual Analysis, Hart Publishing, pp. 118-134.

 

Additional Readings:

  • Vernon Hewitt and Shirin Rai, 2010, Parliament, in Jayala and Mehta (eds) Oxford Companion to Indian Politics, OUP, pp. 28 to 42.
  • Granville Austin, 1999, The Judiciary: “Quite Untouchable’, in Working a Democratic Constitution, OUP, pp. 123- 140.
  • Lavanya RajaMani, 2016, International Law and the Constitutional Schema, in Sujit Choudhryet al, The Oxford Handbook of the Indian Constitution, New Delhi: OUP, pp. 143- 159

 

Module 4- Fundamental Rights and Directive Principles

Part III and Part IV of the Indian Constitution providing for the charter of rights, duties of the citizens and obligations of the state are believed to embody the substance of the constitution. Much of the constitutional aspirations and the transformative intentions of the constitution makers find expression in these parts. Besides these reflections much of the contest around the identity and the ideology of the Indian constitution are particularly located around the debates on fundamental rights whether that relates to the tussle between the liberal intentions and the socialist visions or the harmonization of secular claims with minority rights, among others. This module focuses on the above with a detailed study of textual provisions read together with the history of their crafting in CAD alongside some reflections on how these provisions were employed, interpreted, innovated upon, by the institutions of governance.

3 weeks

Primary texts:

  • Article 14- 30, Part III (Fundamental Rights), Constitution of India

Readings

  • Granville Austin, 1966, The Conscience of the Constitution, Indian Constitution, Cornerstone of a Nation, OUP, pp. 63- 105.
  • Madhav Khosla, 2012, Rights and Goals, in The Indian Constitution, OISI, OUP, pp. 87- 148.
  • Arun Thiruvengadam, 2018, The Constitution of India, a Contextual Analysis, Hart Publishing, pp. 101 to 137.
  • Gautam Bhatia, 2016, Directive Principles of State Policy, in Sujit Choudhryet al, The Oxford Handbook of the Indian Constitution, New Delhi: OUP, pp. 644 to 661.
  • Pratap Bhanu Mehta, 2002, Inner Conflict of Constitutionalism: Judicial Review and the ‘Basic Structure’, in Hasan, Sridharan, Sudarshan (eds), India’s Living Constitution, Permanent Black, pp. 179- 206.

Additional readings to be introduced through class lectures:

  • Marc Galanter, 2002, The Long Half-Life of Reservations, in in Hasan, Sridharan, Sudarshan (eds), India’s Living Constitution, Permanent Black, pp. 306- 318 .
  • Lawrence Liang, 2016, Free Speech and Expression, in Sujit Choudhryet al, The Oxford Handbook of the Indian Constitution, New Delhi: OUP, pp. 814 to 833.
  • Ronojoy Sen, 2016, Secularism and Religious Freedom, in Sujit Choudhryet al, The Oxford Handbook of the Indian Constitution, New Delhi: OUP, pp. 885 to 902

 

Module 5- Centre-state Relations and Asymmetrical Federalism

This module takes up one of the most dominant constitutional themes that may be regarded as an innovation as well as a persisting constitutional tension- federalism and its unique expression within the Indian Constitution. The module would focus on the constitutional provisions related to federalism and how the federal structure in India has changed alongside legal and political developments. The module emphasizes on asymmetry as the specific attribute of Indian federalism particularly reflected in the provisions related to special constitutional status to Jammu and Kashmir, autonomous powers to tribal and hilly areas, etc.

2 weeks

Primary Texts:

  • Article 2-4, Part I (the Union and its Territories), Constitution of India
  • Article 370- 371 (J), Part XXI, Constitution of India
  • Fifth Schedule and Sixth Schedule, Part XXII, Constitution of India

 

Readings

  • Arun Thiruvengadam, 2018, Federalism, The Constitution of India, a Contextual Analysis, Hart Publishing, pp. 71- 92.
  • S.K. Chaube, The Indian Union, Making and Working of Indian Constitution, NBT, pp. 54- 80.
  • M.P. Singh and R. Saxena, 2011, Towards Greater Federalization, in Indian Politics: Constitutional Foundations and Institutional Functioning, Delhi: PHI Learning Private Ltd., pp. 166-195.

 

Additional Reading:

  • M.P. Singh, 2016, The Federal Scheme, in Sujit Choudhryet al, The Oxford Handbook of the Indian Constitution, New Delhi: OUP, pp. 451- 465.

 

Module 6- Democracy and Constitution: Preventive Detention, Emergency and Extra-ordinary Laws

  • This module focusses on the debates around personal liberty, rule of law and due process enveloped in the state security discourse. The earliest expressions of these themes emerged within the Constituent Assembly in relation to the discussion on right to life and personal liberty, suspension of fundamental rights and the emergency provisions and later with the passing of the Preventive Detention Act 1950 by the provisional Parliament. The module builds on these debates to look at the decade of 1970s where allegations of subverting the constitution were made with the invocation of national emergency and the constitutional amendments that followed. The module also focuses on the enduring conflict between a serious of extra-ordinary security legislations that have been enacted post-independence and the democratic rights guaranteed by the constitution.

2 weeks

Primary Texts:

  • Constituent Assembly Debate on Article 15-A (Article 22 in the Constitution of India), September 15 and 16, 1949, CAD, Volume IX
  • Articles 352, 353, 356, 358, 359, Part XVIII (Emergency Provisions), Constitution of India
  • Armed Forces (Special Powers) Act 1958,
  • List of Do’s and Don’ts with regard to the application of the ArmedForces (Special Powers) Act 1958 as directed by the SupremeCourt in NPMHR v. India in 1997

 

Readings

  • Granville Austin, 1966, Fundamental Rights II, Indian Constitution, Cornerstone of a Nation, OUP, pp. 128- 142.
  • Granville Austin, 1999, Democracy Rescued or Constitution Subverted: Emergency and 42nd Amendment, in Working a Democratic Constitution, OUP, pp. 370- 390
  • Ujjwal Kumar Singh, 2015, Anti-terror laws and Human Rights, in Kamala Sankaran and Ujjwal Kumar Singh (ed.) Towards Legal Literacy, Oxford University Press, New Delhi. Pp. 181-197.

 

Assessment Details with weights:

Class test

20

Mid term

30

End term

40

Class participation

10

 

Reading List:

Provided above with module descriptions