Generations of Constitutional Studies

First Generation: Constitution as a Formal Text

The first generation approaches the constitution as a legal document and a set of formal rules. These studies are descriptive and lack a distinctive analytical framework. The focus is primarily on the form and structure, functional division of power and the relationship between different institutions among others. The objectives and values that inspire the institutional framework are secondary or even ignored. The first-generation studies have all the limitations of traditional comparative politics. Early issues of the Indian Journal of Political Science have numerous studies in this mould (Amma, 1948; Banerjee, 1949; Chand, 1940; Ghosal, 1953; Haqqi, 1961; Jagannadham, 1947).

In this generation, one can also include the work of constitutional historians who trace the constitution’s antecedents through a series of colonial legislation and make it appear as if the Indian constitution is the result of a succession of colonial reforms (Keith, 1969; Pylee, 1967). This work reinforces the perspective that the British were here to train Indians to self-rule. Another genre of works in this generation includes those written by those involved with the Constituent Assembly (CA). Both B. N. Rau (1960) and B. S. Rao (1968) have extensively written about the procedures in making the constitution, how decisions were arrived at, the legal dimensions of various provisions, and so on. Despite the limitations, the first-generation scholarship provides us with a valuable reckoner of the past and the making of the constitution.

Second Generation: Constitution as Epiphenomenal

The critique of traditional political science as narrowly focused on the formal-institutional dimension was loud and clear by the 1970s. The study of law and institutions was discredited and considered unfashionable. Consequently, there appears to be a conscious attempt to steer clear of institutions in the second generation. We can distinguish between two strands within this generation based on their approach. The first strand takes a political-historical approach while the second strand views politics as derivative and epiphenomenal to deeper social and economic processes. We believe Granville Austin (1966), Shibani Kinkar Chaube (1973) and Sobhan Lal Dutta Gupta (1979) are the best representatives of the second generation of constitutional studies.

Grounded in rich historical archival materials and interviews with leading participants, Austin (1966) provides us with an insightful account of the CA and its working. He stays clear of the ‘hyper factualism’ and prosaic historical narrative of the first generation. He believed that a purely legal examination would not bring out the mandate of social and economic revolution. Austin notes that despite being elected on a limited franchise, the CA was a highly representative body and its distinguishing characteristic was the mode of decision making. Consensus building and accommodation, he underlines, was integral to the success of the CA.

We can discern both strands of the second generation in Chaube’s (1973) classic study on the CA. The first part of his work focuses on political developments leading to the establishment of the CA, while the second examines the constitution’s framing. At the same time, there are strains of the first generation evident in his work when he underscores the complicated details in the constitution and attempts to trace the evolution of provisions from the original suggestion to the final decision. For Chaube, the CA reflected the political developments that had taken place, and the constitution was a ‘human document’ worked out by a people motivated by a particular historical condition.

For Gupta (1979), politics could not be autonomous and political forms and processes were subsidiary to societal power relations. According to him, the constitution was designed to protect status quo and unequal positions and benefitted limited sections of society. To illustrate this point, he compares two parts of the constitution: the Directive Principles of State Policy (DPSP) and Fundamental Rights. According to him, the provisions of the right to property and justiciability of fundamental rights perpetuated fundamental injustice and demonstrated the constitution’s insensitivity to the socio-economic conditions of the people. He believed that the Supreme Court judges came from affluent sections of the population and were indifferent to the underprivileged and propertyless sections of the population.

The second generation of studies moves beyond facts and a legalistic reading to seek out a deeper meaning and understanding of the constitution. The epiphenomenal strand underlines the point that some principles and processes of the constitution benefit particular sections of society more than others. The political-historical strand found that the nature of the CA’s decision-making process and debates can also throw light on the constitution’s articles. Both strands demonstrate that there is much more to the constitution than the specific articles and provisions.

Third Generation: Constitution as a Moral Document

The third generation attempts a political theory of the constitution moving away from the morphological and functional approach stressing that the constitution is an ethical/moral document expressing a normative vision (Mahajan, 2013). They believe that a focus on the formal characteristics alone will not tell us what the constitution stands for or what normative order it engenders. This approach contrasts with the epiphenomenal tradition which viewed constitutional principles as materially determined and not having a logic of their own.

However, the third generation is also a part of an older tradition within social sciences in India, which was critical of the language and understanding of India in Western Scholarship and was attempting to understand India in its own terms (Bhargava, 2008). While there are differences within this older tradition, there is a consensus that we need to interrogate received concepts. ³ The third generation of constitutional studies underlines the point and argues that concepts like equality, democracy, rights, secularism and justice found in the Indian constitution may have originated elsewhere but have been refined and interpreted to give them new meanings.

In the mid-1990s, there is a steady output emphasizing the normative content in the Indian constitution. Much of this scholarship comes from the political science departments at Jawaharlal Nehru University and the University of Delhi. This was also the period in which conservative and majoritarian positions began to express more loudly a critique of the constitution and its values. This naturally led to a ‘closing of left-democratic ranks and a reassertion of faith in the values under attack’ (Menon, 2004, 1812). Therefore, the third generation is not only addressing a debate within the discipline but is also engaged with a contemporary public discussion about the meaning and nature of the constitution.

The ‘constitution as a moral document’ generation returns to the CA debates to make sense of the values that undergird the constitution. This tradition presents a new framework to understand the constitution and its working and opens up the possibility that there could be multiple meanings and visions (Nigam, 2004). The different perspectives identified include among others Ambedkarite, Gandhian, Nehruvian, Nationalists, Adivasis, and Dalits (Baxi, 2002). Some dimensions that have received considerable attention include equality and representation (Guru, 2008, 2010; Jha, 2004), citizenship (Roy, 2010), secularism (Bhargava, 2002; Mahajan, 2008), multiple roles of the state and the inherent tensions (Palshikar, 2008) and minority rights (Bajpai, 2011; Chandoke, 2002; Jha 2003).

Within the third generation, there is a strand that looks at the constitution as an organic entity or as a ‘living’ organism (Hasan et al., 2002). It is argued that constitutions change over time when they are pushed to respond to different requirements and circumstances. These can be by way of new interpretation or application of constitutional principles, and the mechanisms of change include constitutional amendments and judicial interpretation (Mehta, 2007; Shankar, 2009). A living constitution underlines the point that a constitution could change in many ways over time. They too ask us to look beyond the constitutional text to its conventions, traditions and working (Austin, 1999). The ‘constitution as a living organism’ perspective shows that while constitutions appear to be rigid and unchanging, in reality, change and continuity could coincide.

Fourth Generation: Legal-Theoretical

In the fourth generation of constitutional studies, the legal school returns in a new avatar. While grounded in law, it is deeply influenced by social and political theory, but unlike the first generation, this generation acknowledges the centrality of politics. This ‘legal-theoretical’ generation is dominated by those who attended the ‘national’ law universities. A multi-disciplinary inquiry-based curriculum in these new universities gives students a broader spectrum to understand the law compared to traditional law colleges. Moving away from a formal reading of the text, this innovative pedagogy has opened greater space for interpretation of the constitution, encourages more questions of the meaning(s) of law and also brings in new explanations on how the law and the constitution impact people.

In the Upendra Baxi tradition of scholarship and engagement, the fourth generation of constitutional studies retrieves law from its practical dimension and examines it from an academic standpoint. Baxi had suggested that the normative values and principles and their working can be understood only in the particular socio-economic contexts in which they are located. This approach pushes context to the forefront and views law as a dimension of power, constrained by socio-economic asymmetries. Like the third generation, this generation too notes that a focus on the provisions of the constitution will not tell us much about the nature of the constitution.

The questions and issues addressed by this generation include, among others, the role of constitutions in democracies, relationship between the citizens and the state, the constitution’s impact on citizens’ lives, and so on. Given the rich grounding, it is not surprising that they have been able to extract new meanings of the constitution and its working (Krishnaswamy, 2010) and explore previously unstudied areas of constitutional law (De, 2018). Moving beyond the right to property and freedom of expression, Rohit De examines the working of fundamental rights with respect to issues like prohibition, cow slaughter, prostitution and commodity controls. In each of these areas, he demonstrates how ordinary people used constitutional provisions to advance their position. He concludes that the oft-repeated critique of the constitution as being distant from people’s lives was not warranted. In his case studies, he found that not only the elites but people at the margins saw the constitution as a ‘check on the executive and a powerful way to frame their claims’ (De, 2018, p. 219).

Similarly, when Bhatia (2019) characterizes the Indian constitution as ‘transformative’, he moves beyond the traditional understanding to view the constitution as an instrument that the people used to advance their rights and bring about transformation. Unlike the epiphenomenal position, in the cases that Bhatia examines, he shows that law has advanced the case for non-discrimination and dignity, and thus law has the potential to shape socio-political realities.

In the moral document tradition, Khosla (2020) goes back to the CA debates to understand the frame adopted to institutionalize democracy in a society that did not have the necessary hardware to house it. The constitution was in many ways a ‘pedagogic tool’, an ‘instrument of political education’ which aimed to build a ‘new civic culture’ (Khosla, 2020, p. 22). Centralization, codification of the many provisions and representation were the three pathways to enable a more hospitable atmosphere and were not surprisingly the main fault lines in the CA debates.

This tradition has also enriched the field of comparative constitutional law which was hitherto informed by the experiences of a few countries (Khilnani et al., 2013; Tushnet & Khosla, 2015). It would not be wrong to say that legal-theoretical approach is the dominant tradition of constitutional studies in India at the moment.

Conclusion

How courses are taught is of great importance to the advancement and success of a discipline. Teaching involves both the content of courses and classroom transaction itself. It is through teaching that new entrants are exposed and socialized into the discipline. Today when information about the constitution is available at the click of a button, a descriptive, formal, legalistic approach is unlikely to be attractive. This mode is more likely to turn students away from the study of Indian politics to other sub-disciplines and even other disciplines.

Furthermore, if the teaching enterprise falters, research also stumbles. Therefore, if the study of Indian politics has to be attractive, and a vibrant research culture is to be advanced, then the teaching-learning has to be done differently. In this article, we focused on studying the Indian constitution, one of the key articles in the political science curriculum across Indian universities. We conclude with two suggestions which may help change the current state of affairs.

We put forward a generational framework which categorizes the huge volume of literature studying the Indian constitution. Our framework reveals that each generation has attempted to overcome previous generations’ weaknesses and has opened new pathways to further our understanding of the constitution and its working. This framework highlights both the cumulation of knowledge in the area of constitutional studies and advances in the field. The framework should aid content organization and provide a handle to make sound interconnections between the many readings. An examination of question papers at both the undergraduate and postgraduate levels across universities will reveal the legal-structural approach’s predominance in teaching the Indian constitution. The framework should encourage teaching-learning practices to move away from the traditional formal-reading of the constitution and its provisions. It demonstrates that there are multiple pathways to the study of the constitution and using different approaches simultaneously can make teaching-learning a more enriching experience.

Furthermore, the framework should help both students and teachers to contextualize different writings on the constitution. It may help resolve the dilemma of how to cover the field adequately given the constraints of time. Finally, it also allows for higher-order learning by encouraging comparisons both between and across generations.

The study of the constitution and its working is vital to the understanding of Indian politics. This review underlines the possibility that students of political science have ceded the study of the constitution and its working to those trained in legal studies. The behavioural revolution appears to have impacted research and scholarship, selectively leading to a strange paradox. On the one hand, there is a poverty of scholarship on the constitution specifically, and political institutions in general since the study of institutions and their working became unfashionable. This poverty is acutely visible in the theses and dissertations submitted in the traditional central universities and in the more active political science departments of state universities.

On the other hand, the behavioural revolution has been reduced to a topic in the syllabus in many state universities. It has not necessarily influenced either teaching or research in the discipline in many of the departments. Consequently, there has been no let-up in the descriptive and institutional studies of the formal-legal variety. The strange coexistence both poverty and abundance within the discipline has impoverished our understanding of political institutions and processes in India. The outsourcing of constitutional studies to the legal discipline is not a healthy trend. Can we recover lost ground?

Finally, we believe that the sub-disciplinary silo approach traditionally followed needs to be broken. If papers dealing with the constitution are co-taught with inputs coming from other sub-disciplines, especially political theory, students are more likely to obtain a richer understanding of the constitution and its working. This collaborative approach will not only help widen their horizon but may also encourage more innovative research on political institutions and their working.