I had a few conversations about the best books on the Constitution. FWIW, for me, the gold standard is still Seervai. It's a three-volume set, a bit on the pricey side, but worth every penny.
(It also has other uses; a chap who wondered why I was getting so many deliveries at one point — I buy books — once decided to check what I was buying and trudged three floors up with a sealed Seervai commentary after appropriating the box it came in when I was not around. He opened it up, found the three volumes inside, utterly boring to him, and lost all interest in my shopping forever after. That evening, his wife told me that he thought the box was hers. I hope it gave him a backache. 🤷)
Anyway. Seervai aside, Gautam Bhatia has, of course, been writing consistently in recent years. Personally, though I've not read it all, I find Gautam's writing less accessible (and more dense) than Seervai but definitely think it's worth engaging with.
As a very quick overview of the Constitution, I think Jhabvala does the job while Tripurdaman Singh's Sixteen Stormy Days provides an insight into what the amendment process can look like.
There have also been a number of standalone books that have been published in recent years about specific aspects of the Constitution and its making. I've put together brief notes on a few here; not reviews, not more than one per author. These are just my impressions of the books. ('Proper' reviews are a Google search away.) Also, I've stuck to books which I've seen on sale for less than 500 INR, and which should, hopefully, put together, give one a sense of the Constitution without becoming utterly tedious.
I'm not a "constitutional lawyer" so I'm unsure I'm a good person to do this but I do try to ground whatever arguments I make in the Constitution. My approach to the law combines three influences from three different people, each one of them brilliant: strategic statutory rigour (from the lawyer who actually trained me, his influence being the greatest), constitutional humanism (from Leila Seth whom I'd occasionally turn to for guidance), and socio-economic critique (from Dwijen Rangnekar, a friend who shaped my outlook on IP). I frequently fail to live up to what I'd like to be, and their influence has been limited by my own constraints — there's only so much a person who is so disorganised about numbers that they find dealing with groceries a challenge can do by way of economic analysis, for example — but, as an approach to the law, I think this works well, and I wouldn't change it. It does mean that I'm nowhere near as focused on the Constitution as many others are though.
1. Assembling India’s Constitution: A New Democratic History by Rohit De, Yale University and Ornit Shani, University of Haifa
Both authors had independently written books on the Constitution published in 2018 (focusing on the engagement of a few groups, from traders to prostitutes, with the Constitution and on the first electoral rolls), and then, having realised that they had a stash of unused material between them, they ultimately jointly wrote this book which they've wound up calling the last of a trilogy and which talks about how the Constitution may have been drafted by a few people but was informed by multitudes. It inverts the usual structure of Constitutional scholarship, and provides a glimpse into why, even today, the Constitution is a living document for vast sections of India's citizenry.
It's well worth reading especially since the authors have access to rooms and archives less well established academics would not have been able to easily access but (in my eyes) what redeems them even though they've foregrounded their affiliations is that one of the first people they acknowledge as having supported their work is a translator. Later, there are scores of others mentioned including some 'heavyweights' in (often all but unreadable) blocks of text.
(I mention this because I think that how one perceives a book's authors can influence how one reads their work especially since, in my case, I'm all too aware that academic credentials don't preclude people from being ghastly. I don't know these authors at all but I didn't start off feeling disgusted.)
The book itself is easy to read; a quiet room might help but it's the kind of book one can read at the end of a long day without having fatigue make it impossible to grasp what's being said. It often seems to approach the same idea from slightly different angles which helps. And the authors do have an interesting tale to tell.
2. India’s Founding Moment by Madhav Khosla
Where Assembling Democracy spoke of how the Constitution of India was a bottom-up document influenced by the Indian masses, India’s Founding Moment takes a more conventional view and deals with the Constitution of India being a top-down document, an expression of noblesse oblige by a well-intentioned elite which was intended to act as a pedagogical tool for Indians and provide them the legal infrastructure under which democracy could function in a large country with a plural society.
It deals with the various pressures which led the Constitution to become what it is. The goal was to make it rigid enough not to be ignored or exploited in the future but also elastic enough to be able to confront the chaos and unpredictability that has always been India. The Constitution was to address the lack of political agency felt by ordinary Indians and to simultaneously alleviate the poverty of millions. Civil rights were to be upheld while socio-economic rights were to be implemented. But, not least because of a lack of resources, socio-economic rights articulated in the Directive Principles of State Policy would not be justiciable while the fundamental civil rights listed would be subject to the courts.
Khosla seems to see the Constitution as a document which would create the Indian citizen and counter arbitrary power. While this is definitely a valid point of view, it may also be fair to argue (I think, and this isn't really reflected in the book) that the Constitution's elasticity became the codification of ‘jugaad’, the clever and sometimes questionable workarounds by which all Indians live whether or not they want to; competing tensions once again. Whichever way one looks at it, it is in the making of the Constitution itself that the seeds of the basic structure doctrine can likely be found: in the many discussions on what the Constitution should be and on what form it should take.
Khosla’s book is not long but its language is not especially forgiving of those who work long hours, of those whose concentration lapses, or of those who become distracted. A book best read when one isn't exhausted.
3. The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy between the Supreme Court and Parliament by T. R. Andhyarujina
Madhav Khosla spoke of whether the Constitution was intended to limit state authority or accord authority to the state, a question that came to a head in the 1967 Golak Nath case, and was ultimately decided in 1973 via the Kesavananda Bharati matter where it was determined that the basic structure of the Constitution is unalterable... though not in a way that closed the chapter entirely.
Seervai appeared on behalf of the government in that matter and Andhyarujina was his junior; the latter kept a daily journal which he drew on to write a book about the case which was published a few years before he passed on. In his own career, he had by then gone on to deal with hard law, the black letter of the law as it's referred to, much of the time but he was also involved in matters like Vishaka (1997), the case that dealt with sexual harassment, where he took a non-adversarial position facilitating the development of anti-harassment guidelines, then a lacuna in municipal law.
The book provides a rare glimpse into what happened, not merely in terms of legal analysis and doctrine but in terms of the surrounding political drama. It's not long at all but reading it is like sitting across the table from a very precise Parsi teacher: you are expected to have done your homework (which, in this case, means having read Articles 368 and 13(2) of the Constitution). If you have, every word is crystal clear, and, if you haven't, you will be entirely at sea.
My own experience with Parsi teachers comes more from music than law. You'll have a jug of water placed beside you, bought in 1952 and never replaced because it works perfectly well and is good quality, you'll learn on a Steinway, and you'll throw your rough notes into a plastic dustbin that costs 20 INR placed 6 feet away because why would you need more than that, all while having the subject of your study rigorously drilled into you either with more generosity than you'd imagine possible if you're well prepared or more impatience than you know how to handle if you're not.
Reading the book was like taking a trip down memory lane for me, and it's a book I’d recommend for its explanation of where the Constitution is “fixed”, where it's “fixable” and how, perhaps, it should or could or shouldn't be amended.
4. 1947-1957, India: the Birth of a Republic by Chandrachur Ghose
The 1973 Kesavananda Bharati matter settled the fact that the basic structure of the Constitution is unalterable. However, it did not explain exactly what constitutes the basic structure of the Constitution. To make sense of what might do so, it's worth looking at the politics of the time.
Granville Austin’s political history of the Constitution, 'Cornerstone of a Nation', is the go-to for the purpose. It was written in the 1960s, with inputs from Rajendra Prasad and Jawaharlal Nehru. Its proximity to the events and the people of the time is both a strength and a weakness: it ‘knows’ what happened but presents it as a sanitised narrative typical of the era. Polite conversation, if you will, that is arguably kinder to the British than they deserve.
Chandrachur Ghose’s book: ‘1947–1957, India: The Birth of a Republic’ was published in 2023 and is more direct. It doesn't focus on the Constitution although it does have a chapter on it, and the book is worth reading before one delves into the text of the Constitution itself: the document is the expression of an amalgamation of wildly conflicting priorities; attempts to harmonise the varying priorities of its drafters and the perceived wants of Indians met with uneven degrees of success.
And, so, while it's now commonplace to think of the Constitution as a document effecting social transformation or as a pedagogical tool for an entire populace, it is perhaps more accurate to see it as the site where competing interests learnt to coexist, not always comfortably, where citizenship and communalism interact in unpredictable ways just as caste hierarchies and religious affiliations remain unextinguished by the Constitutional promises of equality and secularism.
It has a ‘basic structure’ but that structure is not entirely stable. Ghose’s work helps act as a diagnostic tool to identify potential sites of instability.
5. The Colonial Constitution by Arghya Sengupta
The Constitution may well be the site where competing interests co-exist, and to ensure that they do so in relative harmony, it provides the mechanisms through which the co-existence is enforced. Which is partly what explains its failure to cut off from the coercive practices of the British Empire.
The 1935 Government of India Act, criticised by virtually every faction of the Indian polity when it came into being for its utter failure to bring Indians closer to self-rule in any meaningful way, formed the basis of the Constitution of free India. If not anything else, the Indian state would have the means to enforce its founders’ aims (and the sometimes terrifying efficiency through which it has acted in the decades since independence has demonstrated this truth).
Those aims, vastly different from the aims of the British Empire, are what distinguish the Constitution from the Government of India Act. However, in the formulation of those aims, inspiration was taken from France and the United States of America, and one can almost see how keen the lawyers who drafted the Indian Constitution were to avoid problems that had crept up in other countries.
For example, Arghya Sengupta writes: “To the unemployed, the promise of a job, even if it prevented them from joining a union and exercising their fundamental right to associate with others, would be preferable to the theoretical freedom to speak.” Although there is no mention of Lochner v. New York (1905) here, it seems extraordinarily unlikely that Ambedkar would not have been acutely aware of the US case as he drafted early versions of Fundamental Rights, which unequivocally envisaged India as a socialist state, later tempered in the Constitution's Directive Principles of State Policy.
The operational parts of the Constitution itself turned into pragmatic eclecticism, a very lawyerly hodge-podge of the parts of other constitutions which actually seemed to work; every lawyer’s dream of being supported by precedent came true.
However, it also meant that the top-down nature of government seeped into the new republic, an intentional choice likely informed by the trauma of Partition and one which has been increasingly challenged in recent years especially given efforts to ‘decolonise’ India's statutes over the last 10 years or so.
Sengupta's work is explanatory rather than condemnatory; it explores the tensions and fears which led to the emergence of a ‘colonial constitution’ and discusses issues through which it may be possible to frame the need for decolonisation today.
6. Ambedkar’s Preamble: A Secret History of the Constitution of India by Aakash Singh Rathore
Ambedkar knew exactly how the game was played. He was pragmatic when he needed to be, and he held the line when it came to his core beliefs.
He is widely regarded as the chief architect of the Constitution of India but he was never its primary author, a distinction largely lost to historical convention; ‘chief architect’ has come down to us almost as convention and is often understood as being interchangeable with ‘author’.
Although he clearly envisaged a union, Ambedkar wasn't keen on the decentralisation of power especially at the village level, and saw an elaborate system of checks and balances as being a shield against personal venality at the centre.
There is undoubtedly a story to be told there but the one which Rathore focuses on is that of the preamble. The documentation explaining how it came to be is sparse but it is one of the most critical parts of the Constitution, expressing as it does, what the underlying ethos of the then newly-independent India would be.
Rathore speaks of Ambedkar having drafted the preamble, then 81 words long. And delves into exactly what the import of each of those words was. In doing so, he largely ignores the body of the Constitution itself as well as later amendments to the preamble.
Although Ambedkar was heavily influenced by both France and the United States of America (even referring to the ‘United States of India’ at one point), his preamble was tied to his own roots and beliefs: Buddhist philosophy and lived experience.
The preamble is where Ambedkar's mind shines through uncontested.
7. Liberty After Freedom: A History of Article 21, Due Process and the Constitution of India by Rohan J. Alva
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Article 21 is not long but its impact has been extraordinary: it is where ‘fundamental’ rights not explicitly listed in the Constitution are housed, from the right to privacy to the right to freedom from discrimination on account of sexual orientation. In 2018, RF Nariman, J (who has more recently written about world religions) called Article 21 the ‘Ark of the Covenant' so far as the Fundamental Rights Chapter of the Constitution is concerned.
Alva looks at the history of the Article pointing out that discerning its original meaning is not possible because record of contemporaneous discussion has been lost to us; the assembly debates aside, documentation is so scant that it might as well be non-existent, for example, when it comes to understanding why the Article talks about the ‘procedure established by law’ rather than ‘due process’ as early drafts did.
The Article 21 we know now has come to us through judicial interpretation from the 1970s onwards and it is a reflection of the evolution of the Constitution as a living document. It is the Article to which lawyers turn when they have nothing else in Chapter III of the Constitution (detailing Fundamental Rights) to rely on, and to provide supplemental support to their arguments when they do.
Alva’s view feels slightly romanticised and idealistic to me; he begins with a description of the Supreme Court building which seems a bit dream-like. (Many years ago, I lived nearby and, the work day aside, I would often drop by in the evening just because I enjoyed the surroundings and because its ATM was convenient. It is beautiful; it's also incredibly solid and functional.)
Alva’s 'idealism' (and I'm not sure that's the best word for it), I think, also seeps into his legal analyses but that doesn't detract from the value of his work. Instead, it gives the book a ‘best of the law’ feel, slightly aspirational perhaps but still grounded and ‘real’.
8. Republic of Rhetoric by Abhinav Chandrachud
Indian citizens have the right to ‘freedom of speech and expression’ although the contours of the right have changed over the years. Free speech can now be restricted for more reasons than it once could but those restrictions must be reasonable.
Chandrachud examines the right and how it came to be not so much through a tedious analysis of the black letter of the law but through an examination of the circumstances which led to the shaping of the right. He tells us, for example, that the right to free speech in free India was not so much a break from colonial practice but a continuation of it albeit one informed by the riots which took place at the time it was first expressed and by a deep distrust of foreigners.
Chandrachud also doesn't restrict himself to the Constitution alone but makes reference to statutes; his text isn't a comprehensive overview of the law but it gives one a sense of the bounds of permissible speech. For context, even by 2012, there were over 30 laws which restricted speech (https://lnkd.in/g8kYiKcn) and that number has steadily increased over the years.
Republic of Rhetoric feels as though the Bombay of old (rather than Delhi) is embedded in its text; its first landmark is Horniman Circle where a memorial plaque reads: ‘Dedicated to the Memory of Benjamin Guy Horniman 1873—1948 who lived and worked for the freedom of the Press in India.’
And, although its author doesn't say so, that also feels to me as though it's a nod to the fact that commercial interests have played a role in shaping free speech. There is, today, IME, often a distinct vibe against the lawyers of corporate interests (such as those who work for publishers and broadcasters) in comparison to those whose interests are supposedly ‘pure’ and public interest oriented through association with NGOs and the like.
That dichotomy, however, has always seemed false to me in the sense that both factions are geared towards expanding the free speech right with the primary difference being that corporate lawyers are often better funded. This is, I believe, especially true since both corporate and non-corporate lawyers have, IME, had an extremely chequered history when it comes to the intersection of violence and free speech.
(I know I've previously clashed quite spectacularly with some for saying that filmed rape isn't porn as free speech, and if you're not sure of what you're watching, you shouldn't be talking about it at all in the context of ‘free speech’ and the right to access information.)
Coming back to the book though and away from my tangent, it's not one which will tell you exactly what the law is but it does help develop an understanding of its rationale which is important since that is the basis on which one can assess the scope of the law.
Notes:
a. re the changing contours of the right:
In 1950, the Constitutional right to free speech (expressed in Article 19) could not affect the operation of existing laws or ‘prevent the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State’.
In contrast, today, the right to free speech can be curtailed ‘interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence’ but, despite this ostensible widening of its scope, there is a safeguard: the restrictions must now be reasonable to be Constitutional.
b. I should also probably mention, since I've talked about the NGO / corporate divide (which I believe shouldn't exist), that I'm into commercial law myself. And that I've been told more than once in no uncertain terms that I'm a 'traitor to the free speech cause' which I'm sure colours my opinions. 🙂
9. Who Is Equal: The Equality Code of the Constitution by Saurabh Kirpal
Articles 14 and 15 are generally considered to be the core of the ‘equality code’ of the Constitution: the promises that the state will not deny any person ‘equality before the law or the equal protection of the laws’ or ‘discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them’. These two provisions are supported by Articles 16–18 which grant citizens conditional equality of opportunity in relation to matters such as employment by the state, which completely forbid untouchability, and which grant limited recognition to titles.
These are Constitutional provisions which (entirely understandably given how stratified Indian society is) aim to create an equal society by ‘levelling up’, so to speak, and Kirpal’s work provides an exceptionally clear analysis of the mechanics of the Constitution, and how the protections it provides have become more robust over time.
For example, early interpretations of Article 14 tended to be formal requiring only reasonable classification and a rational nexus to justify the differential treatment accorded to different groups of people.
Over time, speaking not specifically with reference to Kirpal's work, interpretation tended to veer towards the purposive and the constructive. This is perhaps most clearly seen with reference to LGBTQIA+ rights both through judicial pronouncement and academic discourse.
In the years I've engaged with the law, I recall seeing a law professor become infuriated by a student suggesting (about 25 years ago) that the Constitutional proscription against discrimination on account of sex included a proscription against discrimination on account of sexual orientation, an interpretation which is now so widely accepted that it is almost banal.
Kirpal's own framework closely mirrors that of the Constitution: he seems to be acutely aware of the difference between substantive and absolute equality, but to consider it through the lens of discrimination being a trap largely ignoring that privilege can make for its own cage and be every bit as much of an obstacle to equality as discrimination, especially when its mechanisms intersect or are layered through religion and gender.
(This is a subject I'd briefly noted elsewhere through one example exploring the challenges ‘upper’ class women may face when it comes to proving physical domestic assault, an area where they can be significantly disadvantaged in comparison to women without their privilege. https://lnkd.in/dknb-c93 )
Kirpal's work is definitely worth reading: it's cogent and current. However, my suspicion is that the next ‘struggle’ for equality, perhaps not in our own lifetimes, will lie not in areas of visible discrimination but in areas of invisible privilege.
10. Articles of Faith by Ronojoy Sen
If there's one subject in India which tends to be particularly fraught, it is that of religion. Articles 25–28 of the Constitution guarantee a limited freedom of religion while Articles 29 and 30 protect minority rights. The limitations allow for such acts as the legal proscription of Sati. However, through the essential religious practices doctrine, they have also effectively turned the judiciary into a theological arbiter which is not its core role.
Since being amended in the 1970s, the preamble to the Constitution has described India as a secular republic although the concept of secularism was implicit in its text right from its inception (and formally recognised in the 1990s). What changed over time is the understanding of what secularism means: although the drafters were by no means agreed, in the 1940s and 50s, secularism had to do with setting up conditions which would allow everyone to practice their own religion without state discrimination.
Sarvepalli Radhakrishnan (who was to become the President) had said: ‘Nationalism, not religion, is the basis of modern life.’ He was also a scholar who modelled equal respect for all religions.
Later, the focus shifted to taking proactive measures to ensure the maintenance of an environment where people would (not just could!) live in harmony regardless of their religious affiliations. At no time has strictly separating ‘state and church’ been the aim.
Sen’s book is considered to be a standard, modern text on religious freedom and judicial intervention. However, he appears to articulate an understanding of secularism and society commonly found in op-eds written by the urban intelligentsia which considers itself progressive. Whether they actually are progressive and whether they unfairly caricature the ‘other’ side is a matter of opinion.
The commentariat aside, there have historically been clear statutory inequalities in India's corpus juris (such as Christian wives, unlike Hindu wives, not being allowed divorce till after 2001 on grounds of adultery alone), and there is good reason to explore, even today, just how far freedom of religion should go and how it should interact with other rights such as the right to equality. Sen’s book provides one perspective and, for that, it is well worth reading.