Working a Democratic Constitution, The Indian Experience.

Granville Austin. Working a Democratic Constitution, The Indian Experience.

New Delhi, Oxford University Press, 1999; second impression, 2000. ISBN 0195648889

Working a Democratic Constitution, The Indian Experience.

by Granville Austin

CONTENTSAbbreviations. p. xix
Introduction. p. 1Prologue. p. 4
Part I : The Great Constitutional Themes
Emerge, 1950-66. p. 11
1 SETTLING INTO HARNESS. p. 13
The Broad Context. p. 15
Power Relations and Adjustments. p. 18
The Nehru Years Reviewed. p. 36
2 FREE SPEECH, LIBERTY AND PUBLIC ORDER. p. 38
Freedom of Expression. p. 40
Freedom of Expression: The Sixteenth Amendment. p. 50
Individual Liberty and Preventive Detention. p. 53
Preventive Detention During An Emergency. p. 63
3 THE SOCIAL REVOLUTION AND THE
FIRST AMENDMENT. p. 69
The Background. p. 70
The Amendment and Agricultural Property. p. 78
The Amendment and Non-Agricultural Property. p. 92
Removing Man-Made Inequalities. p. 94
4 THE RIGHTS AND THE REVOLUTION:
MORE PROPERTY AMENDMENTS. p. 99
The Fourth Amendment. p. 101
The Seventeenth Amendment. p. 110
Democracy and Socialism: The Nehru
Years in Retrospect. p. 116
5 THE JUDICIARY: 'QUITE UNTOUCHABLE'. p. 123
Judicial Independence: Appointments. p. 124
Judicial Independence: Other Risks, Other Protections. p.135
The Quality of Justice. p. 138
6 MAKING AND PRESERVING A NATION. p. 143
Forces for Unity. p. 144
Forces Against Unity. p. 148
Constitutional and Sub-Constitutional
Mechanisms for Unity. p. 156


Part II: The Great Constitutional
Confrontation: Judicial versus
Parliamentary Supremacy, 1967-73. 
p. 171
7 INDIRA GANDHI: IN CONTEXT AND IN POWER. p. 173
Mrs Gandhi, 'Socialism', and Power. p. 176
An Activist Political Generation. p. 182
The Year of the 'Socialists'. p. 186
The Migration of Power. p. 190
8 THE GOLAK NATH INHERITANCE. p. 196
Sowing the Wind. p. 197
Reaping the Whirlwind. p. 202
9 TWO CATALYTIC DEFEATS. p. 209
Bank Nationalization. p. 209
The Princes and their Purses. p. 220
An Evening of Mystery. p. 227
10 RADICAL CONSTITUTIONAL AMENDMENTS. p. 234
Framing the Amendments Begins. p. 236
Amendments in Parliament: The Twenty-Fourth. p. 243
Positive and Negative Reactions. p. 247
Amendments in Parliament: The Twenty-Fifth. p. 250
Tile Web's Seamlessness Forgotten. p. 253
11 REDEEMING THE WEB: THE KESAVANANDA
BHARATI CASE. p. 258
Kesavananda: The Case. p. 260
A Confusing Decision. p. 265
'Unusual Happenings' on the Bench. p. 265
12 A 'GRIEVOUS BLOW': THE SUPERSESSION
OF JUDGES. p. 278
The Supersession. p. 279
The Public Rationale. p. 283
Public Reactions. p. 285
A Brief Assessment. p. 289


Part III: Democracy Rescued Or the
Constitution Subverted?: The Emergency
and the Forty-second Amendment,
1975-7. p. 293
13 26JUNE 1975. p. 295
The Culmination of Trends. p. 297
More Immediate Origins. p. 298
Democracy is Extinguished. p. 309
14 CLOSING THE CIRCLE. p. 314
The Indira Gandhi Election Case. p. 314
Tile Protective Amendments. p. 319
Completing the Circle. p. 325
15 THE JUDICIARY UNDER PRESSURE. p. 328
Basic Structure Revisited:
The Kesavananda Review Bench. p. 328
An Anonymous Attack. p. 333
The Habeas Corpus Case. p. 334
The Transfer of Judges. p. 344
16 PREPARING FOR CONSTITUTIONAL CHANGE. p. 348
Change Takes Shape. p. 350
The Swaran Singh Committee. p. 353
The Committee As a Puzzle. p. 364
Tile Critics. p. 366
17 THE FORTY-SECOND AMENDMENT:
SACRIFICING DEMOCRACY TO POWER. p. 370
The Amendment. p. 371
Who Were Its Authors?. p. 374
Four Mysterious Resolutions. p. 377
The Amendment's Supporters and Opponents. p. 381
Conclusion. p. 388


Part IV: The Janata Interlude: Democracy Restored. p. 391
18 INDIRA GANDHI DEFEATED--
JANATA FORMS A GOVERNMENT. p. 393
Opposition Attempts at Unity. p. 395
Creating One from Many. p. 400
The Congress Party:
Death and Reincarnation. p. 405
19 RESTORING DEMOCRATIC GOVERNANCE. p. 409
Lengthy Amending Preparations Begin. p. 411
The Forty-third Amendment Emerges. p. 417
Drafting the Forty-fourth Amendment Continues. p. 420
The Forty-fourth Amendment in Parliament. p. 424
20 GOVERNING UNDER THE CONSTITUTION. p. 431
Fundamental Freedoms. p. 432
Judicial Independence. p. 435
Federal Issues. p. 441
Protecting Civil and Minority Rights. p. 450
21THE PUNISHMENT THAT FAILED. p. 453
22 A GOVERNMENT DIES. p. 466
A President's Discretion. p. 468



Part V: Indira Gandhi Returns. p. 483
23 GHOSTS OF GOVERNMENTS PAST. p. 484
Anthoritarianism, Dynasty, and the
Presidential System. p. 489
Reawakened Fears for the Judiciary. p. 492
24 THE CONSTITUTION STRENGTHENED
AND WEAKENED. p. 498
Parliamentary Supremacy Revisited:
The Minerva Mills Case. p. 498
Liberties Lost. p. 507
25 JUDICIAL REFORM OR HARASSMENT?. p. 516
Appointments and Transfers of Judges. p. 517
Transfers Go To Court. p. 521
The Battle of the Affidavits. p. 528
26 TURBULENCE IN FEDERAL, RELATIONS. p. 534
The Dissolution of State Assemblies. p. 536
Background to the Constitutional Revolt of 1983. p. 537
The Constitutional Revolt. p. 541
Pathway to Death. p. 546
Part VI: The Inseparable Twins: National Unity and Integrity and the Machinery of Federal Relations. p. 553
27 TERMINOLOGY AND ITS PERILS. p. 555
Definitions and Their Uses. p. 556
The Constitution's 'Federal' Provisions:
Definitions and Uses. p. 560
Federalism's Phases. p. 565
The Nehru Years. p. 565
The Indira Gandhi Years. p. 568
The Janata Years. p. 571
Nehru and Mrs Gandhi Compared. p. 572
28 THE GOVERNOR'S 'ACUTELY
CONTROVERSIAL: ROLE. p. 574
Gubernatorial Independence. p. 577
Discretionary Authority of the Governor. p. 582
Reservation of Bills. p. 590
29 NEW DELHI'S LONG ARM. p. 594
National Emergencies. p. 595
Central Forces in a State. p. 597
Political Parties and President's Rule 604
30 COORDINATING MECHANISMS: HOW 'FEDERAL' ?. p. 614
The Finance and Planning Commissions. p. 614
Other Coordinating Mechanisms. p. 623
'Federalism' and the Seamless Web. p. 628
Part VII: Conclusion p. 631
31 A NATION'S PROGRESS. p. 633
The Well-Shaped Cornerstone. p. 634
Conditions. p. 636
The Fourth Strand: Culture and the 'Survival Society'. p. 637
The Fourth Strand, Democracy and Social Revolution. p. 645
The Constitution Against Itself. p. 651
Branches and Strands. p. 658
Summing Up. p. 665 
Bibliography. p. 670Index

DALITS IN INDIA Sukhadeo Thorat’s book

A reality check

V. VENKATESAN

Sukhadeo Thorat’s book throws light on the gap between rhetoric and reality over Dalits’ emancipation.

ACCORDING to data obtained in 2007, about 17 per cent of Scheduled Caste persons in the country cultivate land; about 12 per cent in the rural areas and 28 per cent in the urban areas are in business, albeit small; the literacy rate among them has gone up to 57 per cent; unemployment has diminished; and the share of the S.Cs in government services has improved. As a consequence of all these positive changes, poverty has declined among the S.Cs, says Sukhadeo Thorat in Dalits in India: Search for a Common Destiny. Furthermore, he cites evidence to suggest that the practice of untouchability and discrimination have reduced to a certain extent in some public spheres.

Those who plead for the exclusion of the creamy layer in the S.C. community from the reservation ambit will find these data useful. The concern of Thorat’s book is not to protect the quota benefits enjoyed by the creamy layer among the S.Cs; nor is the book an answer to critics of the continuation of quota for the creamy layer among the S.Cs. In fact, those who read this book will be more than convinced why the creamy layer category within the S.Cs should not be denied the quota benefits for a long time to come.

Thorat rightly says that notwithstanding some gains made in the past 50 years or so, the disparities between S.Cs and other sections of Indian society continue, with the S.Cs lagging behind with respect to a number of development-related indices.

Consider this. In 2000, about two-thirds of S.C. rural households were landless or near-landless, compared with one-third amongst the non-Scheduled Caste/Scheduled Tribe communities; fewer than one-third of S.C. households had acquired access to capital assets, compared with 60 per cent among non-S.C/S.T households; and about 60 per cent of S.C. households still had to depend on wage labour, compared with one-fourth among non-S.C./S.T. households.

Disparities of a similar magnitude exist in their health status. The incidence of anaemia among S.C. women and the mortality rate among S.C. children are high compared with those among their non-S.C/S.T. counterparts. Various studies show evidence of discrimination in various market and non-market transactions, including access to social services such as education, health and housing, and in political participation.

Thorat reveals, with the support of data, that the cumulative impact of these disparities is reflected in the high levels of poverty in the S.C. community. In 1999-2000, about 36 per cent of S.Cs were poor as compared with 21 per cent among non-S.Cs/S.Ts. The prevalence of poverty was particularly high among S.C. households that were engaged in wage labour in rural areas (50 per cent) and urban areas (60 per cent).

More significantly, S.Cs continue to be victims of untouchability and other atrocities, even if they have registered some degree of material progress. Thorat notes that on an average about 23,000 cases of human rights violations and atrocities are registered with the police annually by S.Cs. He believes that there is still a long way to go before S.Cs can attain some degree of respectability, a dignified life and sustainable livelihood. According to him, the gap between S.Cs and non-S.Cs can be reduced by strengthening and expanding the current policy of empowerment and equal opportunity.

Martin Macwan, Chairperson, Indian Institute of Dalit Studies (IIDS), which carried out the research for this book, states in the foreword that the thematic issues dealt with in the book have been substantiated by detailed datasets – from three decadal periods, beginning from the 1980s to the present day – generated from a wide universe of sources, including official sources and micro-level studies.

A brief note on the methodology and sources of the book will be of use to readers to understand how comprehensive and detailed the chapters of this book are. The book draws upon datasets from the Census of India and the National Sample Surveys on land ownership, employment and unemployment, and consumption expenditure. It also utilises the Rural Labour Inquiry reports, which are unique in the sense that they provide data on several aspects of rural labour from 1974-75 to the present day.

In case of indicators such as education, health and civic amenities, the book utilises data from the Census of India and the National Family Planning and Health Survey reports. For the analysis of the incidence of discrimination and atrocities, the book relies on data carried in Crime in India reports and substantiates it with additional data from the National Commission of Scheduled Castes and Scheduled Tribes, reports of the Ministry of Social Justice and Empowerment, and some primary studies on caste discrimination and atrocities.

Looking back

The book is of immense value for the nuggets of information it carries. The Schedule Caste members constitute about 16.2 per cent of the Indian population. More than half the S.C. population is concentrated in the States of Uttar Pradesh, West Bengal, Bihar, Tamil Nadu and Andhra Pradesh.

The use of the nomenclature ‘Scheduled Castes’ can be traced back to 1932, when it was proposed before the Indian Franchise Committee by the then provincial government of Bengal. Accordingly, in the Government of India Act, 1935, a schedule containing a list of these classes was added for the first time. Prior to this, they were classified as ‘Depressed Classes’. Article 341 of the Constitution authorises the President of India to specify castes to be notified as S.Cs. The President, in consultation with the Governor of the State concerned, notifies a particular caste as S.C.; the inclusion of the caste in the schedule is then promulgated by Parliament. Various presidential orders from 1950 to 1978 notified, modified and amended statutory lists of S.Cs in various parts of the country. At present, there are 1,231 castes on the list of S.Cs.

In the introduction, Thorat briefly deals with the characteristic features of S.Cs. He rightly suggests that the criteria for inclusion of a particular caste on the S.C. list were based on its social, educational and economic backwardness arising out of traditional customs related to the practice of untouchability.

The Government of India Act, 1935, determined these forms of deprivation, particularly social and economic, on the following basis: that it occupies a low position in the Hindu social structure; its representation in government services is inadequate; it is inadequately represented in the fields of trade, commerce and industry; it suffers from social and physical isolation from the rest of society; and there is a general lack of educational development amongst major sections of the community. Considering that there is a clamour from many other backward classes for inclusion on the list of either S.Cs or S.Ts, Thorat could have also dealt with the adequacy of these criteria, although this cannot be suggested as a serious limitation of this book, whose major concerns are different.

The book deals with policy directions for the government in terms of dual strategies, namely, empowerment and equal opportunity. Under empowerment, Thorat calls for improvement in access of the S.Cs to agricultural land, and for steps to make S.C. cultivators viable, in terms of increased access to credit and other inputs and to market opportunities. Similarly, he recommends improving the S.Cs’ access to capital, information and markets to make businesses run by S.C. members viable.

Given that the acquittal rate in cases relating to untouchability and atrocities is close to 99 per cent, Thorat suggests that there is a need to improve drastically the working of institutions such as the judiciary, the police and the relevant divisions of ministries, public prosecutors and village-level functionaries engaged in the enforcement of the laws aimed to prevent untouchability and atrocities against S.Cs and S.Ts and the delivery of social justice.

The book rightly observes that the strategy of economic and educational empowerment will improve the capacity of the S.Cs to participate in economic development, but will not necessarily provide their members their due share in employment and access to various markets. An improvement in education levels and job skills will improve employability, but discrimination in the labour market may deny them the chance of getting jobs. Similarly, the book argues that the availability of agriculture land and capital for (non-farm) business may help members of the S.Cs initiate cultivation and non-farm businesses, but discrimination in the provision of inputs, credit, information, civic amenities such as electricity, water, and so on, and the sale of final products may generate less income and make their businesses less profitable.

The book suggests that there is evidence of discrimination against S.C. workers in employment and S.C. businesspersons in various markets. It is precisely for this reason, the book argues, that the equal opportunity policy has been developed in the form of reservation to ensure S.Cs their due share in employment, education, capital for business, housing, water and other amenities. The book makes a strong plea for a parallel reservation policy for the private sector, covering various markets, as there is evidence of caste-based discrimination.

Thorat, who is the Chairman of the University Grants Commission, has to be commended for authoring this book with empirically rich data.