Constitutionalism in India: Emergence, Evolution, and Future

Introduction

Constitutionalism, in its essence, signifies governance limited by law, standing as the antithesis of arbitrary rule.¹ It embodies the principle that governmental power is not absolute but is constrained by a higher law – the Constitution – which establishes the framework for the state, defines the powers and responsibilities of its organs, imposes limitations, and regulates the relationship between the state and its populace.² In the Indian context, however, constitutionalism transcends this traditional Western notion of mere limitation.¹ The Indian Constitution is not solely a document restricting state power; it is profoundly a “social document” ⁴, envisioned as an instrument for democratic transformation and social revolution.⁶ It aims to dismantle entrenched social hierarchies, foster equality and justice, protect fundamental rights, and accommodate the nation’s immense diversity.⁶ This report examines the multifaceted journey of constitutionalism in India, tracing its historical emergence from pre-colonial concepts and colonial legislative experiments, analyzing its development through the framing process in the Constituent Assembly, investigating its evolution via judicial interpretation and legislative amendments, evaluating its present state amidst contemporary challenges, and exploring its future prospects in a rapidly changing world. It relies exclusively on authoritative sources, including historical texts, legal scholarship, Constituent Assembly debates, and Supreme Court judgments, providing verifiable citations throughout.

Historical Emergence of Constitutionalism in India

The roots of constitutionalism in India are deeper and more complex than a simple inheritance from the British colonial period. While colonial rule undeniably shaped the formal structures and trajectory of modern Indian constitutional development, indigenous concepts of governance and the protracted struggle for independence played crucial roles in its emergence.

Pre-Colonial Roots and Early Concepts

While not codified in the modern sense, elements resonant with constitutional principles can be traced in ancient and medieval Indian thought and practice. Ancient texts like the Manusmriti and Arthashastra outlined moral, ethical, and legal guidelines for rulers, emphasizing Dharma (righteousness) and the duty to ensure justice and the well-being of subjects.⁸ Early republican experiments, such as the councils (sabhas and samitis) of the Lichchhavis and Vajjis, demonstrated forms of self-governance and collective decision-making.⁸ These historical precedents, alongside later Mughal administrative practices concerning ruler welfare obligations, contributed to a pre-existing political consciousness upon which later constitutional demands were built.¹

Colonial Era Legislation and Gradual Constitutional Development

The arrival of the British East India Company in the 17th century, followed by direct British Crown rule after 1858, marked a pivotal phase.⁸ Governance during this period was primarily dictated by statutes enacted by the British Parliament, designed initially to regulate the Company and later to administer the colony.¹¹ These acts, while imposed by an alien power and often serving colonial interests ¹⁰, inadvertently laid some groundwork for future constitutional structures through a gradual, albeit limited, introduction of representative elements and legislative processes.

The key legislative milestones include:

• Regulating Act of 1773: The first attempt by the British Parliament to regulate the East India Company’s affairs, establishing the Governor-General of Bengal and initiating a process of centralization.¹⁰ It also established a Supreme Court in Calcutta.¹⁰
• Pitt’s India Act of 1784: Established a dual system of control by the British government and the Company, designating Company territories as “British Possessions in India”.¹⁰
• Charter Acts (1793-1853): These acts periodically renewed the Company’s charter. Notable were the Charter Act of 1833, which centralized legislative power under the Governor-General of India ¹⁰, and the Charter Act of 1853, which separated the Governor-General’s legislative and executive functions and introduced open competition for civil services.¹⁰
• Government of India Act of 1858: Following the Revolt of 1857, this Act transferred power from the East India Company directly to the British Crown, establishing the office of the Secretary of State for India and the Viceroy.¹⁰ This marked the formal beginning of the British Raj.
• Indian Councils Acts (1861, 1892, 1909): These acts gradually increased Indian participation in legislative councils. The 1861 Act introduced non-official Indian members.¹⁴ The 1892 Act enlarged councils and introduced indirect elections (nomination) and limited discussion powers, including on the budget.¹¹ The 1909 Morley-Minto Reforms further increased representation but controversially introduced separate electorates for Muslims, a move seen as fueling communal divisions.¹⁰
• Government of India Act of 1919 (Montagu-Chelmsford Reforms): Enacted partly in recognition of India’s contribution to World War I, this Act expanded native participation significantly.⁹ It introduced ‘dyarchy’ in the provinces, dividing subjects between Indian ministers and British officials, and established a bicameral legislature at the center.⁹ However, ultimate power remained with British authorities.¹¹
• Government of India Act of 1935: This was the most comprehensive pre-independence constitutional framework.¹³ It proposed an All-India Federation (though never fully implemented due to opposition from princely states), introduced provincial autonomy by abolishing dyarchy at the provincial level, established a Federal Court, and expanded the franchise significantly (though still limited).¹⁰ It created federal, provincial, and concurrent legislative lists, a structure heavily borrowed by the later Constitution of India.¹⁹ Despite its scope, the Act was widely criticized by Indian nationalists for retaining ultimate British control and lacking genuine self-governance provisions.¹⁸ It served, however, as a crucial administrative blueprint for the Constitution of 1950.¹⁸

This progression, though incremental and often aimed at preserving British interests ¹⁸, familiarized Indian political actors with legislative processes and governance structures, contributing to political awareness and shaping future constitutional demands.¹⁰

Influence of the Nationalist Movement

The Indian National Movement, spearheaded by the Indian National Congress (INC) and figures like Mahatma Gandhi, Jawaharlal Nehru, Sardar Patel, and Dr. B.R. Ambedkar, was pivotal in demanding self-governance and shaping the constitutional vision.⁸ From the late 19th century, the INC passed resolutions demanding greater Indian representation, civil rights, and constitutional reforms.²¹

A significant milestone was the Nehru Report (1928), drafted by a committee chaired by Motilal Nehru in response to the British challenge (via Lord Birkenhead and the all-white Simon Commission) for Indians to produce an agreed-upon constitution.²² This was the first major Indian attempt to draft a comprehensive constitutional framework.²³ Key recommendations included:

• Dominion Status for India within the British Commonwealth.²²
• A federal structure with residuary powers vested in the center.²²
• A parliamentary form of government with a bicameral legislature at the center.²³
• Nineteen fundamental rights, including equality, freedom of speech, and universal adult suffrage for those over 21.²² These rights served as a precursor to the Fundamental Rights in the 1950 Constitution.²²
• Rejection of separate electorates, proposing joint electorates with reservation of seats for minorities in proportion to their population (except where they were a majority).²²
• No state religion (secularism).²²
• Linguistic provinces.²³
• Establishment of a Supreme Court.²³

The Nehru Report, while a landmark effort, failed to achieve universal consensus. The Muslim League, led by Muhammad Ali Jinnah, rejected it primarily over the issue of separate electorates and demanded greater representation and provincial autonomy.²³ Younger, more radical nationalists like Jawaharlal Nehru and Subhas Chandra Bose opposed the demand for Dominion Status, advocating for complete independence (Purna Swaraj).²³ Despite its rejection, the Nehru Report marked a significant step in articulating Indian constitutional aspirations and highlighted the growing communal divide that would tragically lead to Partition.²⁵ The nationalist movement’s emphasis on self-determination, democratic principles, fundamental rights, and social reform profoundly influenced the subsequent framing of the Constitution.⁸

Framing the Indian Constitution: The Constituent Assembly

The culmination of decades of struggle and evolving constitutional thought was the formation of the Constituent Assembly (CA), tasked with drafting a constitution for independent India. This process, undertaken amidst the tumultuous backdrop of Partition, was a complex endeavor involving intense deliberation, negotiation, and the balancing of diverse interests and ideologies.

Formation and Composition of the Constituent Assembly

Following the British Cabinet Mission’s plan in 1946, the Constituent Assembly was established.⁹ Its members were indirectly elected by the members of the provincial legislative assemblies constituted under the 1935 Act.⁸ While not elected through universal adult suffrage, the Assembly aimed for broad representation, including delegates from various communities, regions, princely states (who joined later), and ideological perspectives.⁸ Major parties represented included the Indian National Congress (which held a significant majority), the Muslim League (which initially participated but later withdrew to demand Pakistan), the Scheduled Caste Federation, the Communist Party, and others.⁸

The Assembly first convened on December 9, 1946.⁹ Dr. Rajendra Prasad was elected its permanent President.⁸ Over nearly three years (2 years, 11 months, and 18 days, to be precise), the Assembly held 11 sessions, sitting for a total of 165-167 days.¹² Its proceedings, meticulously recorded in the Constituent Assembly Debates (CAD), provide invaluable insight into the framers’ intentions, philosophical leanings, and the compromises made.³²

Philosophical Underpinnings and Intellectual Influences

The framing of the Indian Constitution was not conducted in a vacuum; it was deeply influenced by a confluence of historical experiences, nationalist aspirations, and diverse intellectual currents, both indigenous and foreign. The framers drew inspiration from various sources, creating a unique blend reflective of India’s specific context and goals.¹¹

• Liberalism and Democracy: The Constitution is fundamentally rooted in liberal democratic principles.² The commitment to individual freedom (evident in Fundamental Rights like free speech), equality before the law, and the rule of law reflects the influence of Western liberal thought, particularly British constitutionalism and the Westminster parliamentary system.⁶ Thinkers like Raja Ram Mohan Roy and Gopal Krishna Gokhale had earlier adapted and advocated liberal ideas within the Indian context.⁴³ The choice of universal adult suffrage, despite widespread illiteracy and poverty, was a radical assertion of democratic faith.⁶ The framers envisioned a republic where power derived from the people.³
• Social Justice and Transformation: Unlike purely classical liberalism, Indian constitutionalism emphasizes social justice and transformation.¹ Influenced by the nationalist movement’s critique of colonial exploitation and internal social hierarchies (especially caste), and figures like Dr. B.R. Ambedkar, the Constitution aimed to be an instrument of social revolution.⁴ This is evident in the Directive Principles of State Policy (DPSPs), which guide the state towards securing social and economic justice, equitable resource distribution, and welfare.³ Provisions for abolishing untouchability (Article 17) and enabling reservations for disadvantaged groups (Articles 15(4), 16(4)) explicitly link individual rights with the goal of societal transformation.⁶
• Secularism: The Indian model of secularism, though the word itself was added to the Preamble only in 1976 ⁴⁹, was a core principle from the outset.⁶ It differs from strict Western separation, embodying “principled distance”.⁶ The state maintains neutrality towards all religions but can intervene to uphold constitutional values like equality (e.g., temple entry reform, potentially a Uniform Civil Code) or grant autonomy to religious minorities (e.g., managing educational institutions).⁶ This approach aims to protect both individual freedom of religion (Article 25) and inter-community equality.⁶
• National Unity and Federalism: Forging national unity amidst immense diversity (linguistic, religious, regional) was a primary concern.⁷ The Constitution established a federal system, drawing heavily from the Government of India Act, 1935, with a division of powers between the Union and States (Seventh Schedule).³ However, reflecting the anxieties of Partition and the need for a strong nation-state, it incorporates significant unitary features, leading to descriptions like “quasi-federal” or a federation with a strong central bias.³ This includes residuary powers with the Centre, emergency provisions (Article 356), single citizenship, and an integrated judiciary.³
• Indigenous Traditions and Gandhian Thought: While heavily influenced by Western models, the framers also sought to blend these with Indian traditions.⁴⁴ Gandhian ideals, though not always directly incorporated (e.g., his vision of village republics was debated but not fully adopted as the primary unit ⁵⁴), influenced the emphasis on social justice, upliftment of the marginalized (Harijans), and certain Directive Principles.⁸ Debates occurred on incorporating elements from ancient Indian polity, but the dominant framework remained largely based on modern constitutional principles.⁸
• International Influences: The framers consciously studied and borrowed provisions from various world constitutions – the US (Fundamental Rights, Judicial Review), Ireland (Directive Principles), Canada (Federal structure with strong centre), Australia (Concurrent List), among others.¹¹ This eclecticism aimed to adopt best practices suited to India’s needs.

The resulting philosophy is complex and resists easy labels, embodying a commitment to liberal democracy, secularism, social justice, federalism, and national unity, all aimed at transforming a hierarchical society into an egalitarian one.²

Key Debates and Issues During Framing

The Constituent Assembly Debates (CAD) reveal intense deliberation and often sharp disagreements on crucial aspects of the Constitution.³² Understanding these debates is essential to grasp the nuances and compromises embedded in the final text.⁶

• Fundamental Rights vs. Directive Principles: A major debate revolved around the nature and enforceability of rights. The distinction between justiciable Fundamental Rights (Part III) and non-justiciable Directive Principles of State Policy (Part IV) emerged from committee discussions.⁴² Some members, like K.T. Shah, argued strongly against this division, wanting socio-economic rights to be equally enforceable.⁴² Dr. Ambedkar defended the DPSPs, arguing that while not legally enforceable in courts, they were fundamental to governance and represented instructions to future legislatures and executives.⁵⁵ The tension between these two parts, particularly the primacy of one over the other, would become a major theme in post-independence constitutional jurisprudence.⁵⁶
• Scope of Fundamental Rights: There were extensive debates on the specific rights and the limitations placed upon them. The inclusion of “reasonable restrictions” on rights like freedom of speech (Article 19) was heavily debated, with some arguing the provisos effectively negated the rights.⁵⁴ Others defended the need for limitations in the interest of public order, security, and morality.⁵⁸ Specific rights like the right to privacy were discussed in committees but ultimately dropped from the explicit list, only to be judicially read into Article 21 much later.⁴² The right to property also saw significant debate, reflecting tensions between individual rights and the state’s goals of social reform (like Zamindari abolition).⁵
• Federalism: The nature of the Indian federation was a core issue. While agreeing on a federal structure, the degree of centralisation was contentious.⁴¹ Supporters of stronger states’ rights argued for greater provincial autonomy, while proponents of a strong centre emphasized the need for national unity, security, and coordinated development, especially given the backdrop of Partition.⁵³ Dr. Ambedkar characterized the draft as federal but acknowledged the flexibility allowing it to become unitary during emergencies.⁴¹ Debates also occurred on the power to create new states and alter boundaries (Article 3), the distribution of legislative powers (Union, State, Concurrent lists), and financial relations between the Centre and States.⁶⁰
• Secularism and Minority Rights: The Assembly grappled with ensuring religious freedom and protecting minority interests in a diverse society. Debates occurred on the nature of secularism, with the consensus leaning towards equal respect for all religions (“Sarva Dharma Sama Bhava”) rather than strict separation.⁶ The contentious issue of separate electorates, a feature of colonial reforms, was decisively rejected in favour of joint electorates with provisions for reservation of seats for Scheduled Castes (SCs) and Scheduled Tribes (STs) for a limited period.⁴¹ The rights of religious and linguistic minorities to conserve their culture and establish educational institutions (Articles 29, 30) were debated and included.⁶¹ The proposal for a Uniform Civil Code (UCC) was debated intensely; while supported by some advocating gender equality and national unity (like Amrit Kaur), it faced strong opposition from Muslim members fearing infringement on personal laws.⁴¹ Ultimately, it was placed in the Directive Principles (Article 44) as a goal for the state to strive towards.⁶³
• Language: The question of a national language was highly emotive, particularly between proponents of Hindi and representatives from non-Hindi speaking regions, especially the South.⁵⁴ Compromises led to Hindi in Devanagari script being declared the official language of the Union, with English continuing for a specified period, and recognition of other major regional languages.²³
• Emergency Provisions: The extensive emergency powers granted to the President (Articles 352, 356, 360) were debated, with concerns raised about their potential for misuse, particularly Article 356 (President’s Rule in states). Dr. Ambedkar defended them as necessary safeguards but hoped Article 356 would remain a “dead letter”.⁶⁴

These debates highlight the framers’ commitment to deliberation and accommodation, seeking consensus amidst conflicting views.¹¹ The final Constitution was a product of these negotiations and compromises.

The Role of Dr. B.R. Ambedkar and the Drafting Committee

While the Constitution was a collective effort, Dr. B.R. Ambedkar played an exceptionally significant role, particularly as the Chairman of the Drafting Committee.⁸ Appointed on August 29, 1947, the seven-member Drafting Committee was tasked with scrutinizing the initial draft prepared by the Constitutional Advisor, Sir B.N. Rau (who synthesized reports from various CA committees and researched other constitutions), and preparing the final Draft Constitution for the Assembly’s consideration.³⁰ Other members included Alladi Krishnaswami Ayyar, N. Gopalaswami Ayyangar, K.M. Munshi, Mohammad Saadulla, B.L. Mitter (later replaced by N. Madhava Rau), and D.P. Khaitan (later replaced by T.T. Krishnamachari).²⁰

Dr. Ambedkar’s contributions were immense:

• Steering the Draft: As Chairman, he skillfully piloted the Draft Constitution through the Assembly, defending its provisions, explaining complex legal concepts, and responding to hundreds of amendments.⁵⁵ His speeches were marked by deep legal scholarship, historical understanding, and a pragmatic approach.⁵⁵
• Championing Social Justice: Drawing from his lifelong struggle against caste discrimination, Ambedkar was instrumental in embedding provisions for social justice, equality, abolition of untouchability (Article 17), and safeguards for Scheduled Castes, Scheduled Tribes, and other backward classes.¹¹ His earlier work, “States and Minorities,” submitted to the Fundamental Rights sub-committee, framed strong protections for these communities.⁵⁵
• Articulating Constitutional Philosophy: In his interventions, Ambedkar articulated key philosophical underpinnings, such as the concept of ‘constitutional morality’ (adherence to constitutional norms beyond mere legality), the imperative of achieving social democracy alongside political democracy, and the non-legal but fundamental nature of Directive Principles.⁵⁵
• Shaping Key Provisions: He played a crucial role in shaping provisions related to Fundamental Rights, federalism (defending the balance between Centre and States), and emergency powers.⁵⁵ He argued for flexibility in the amendment process.⁶⁷

Acknowledged by fellow members like T.T. Krishnamachari and President Rajendra Prasad for his pivotal role, Ambedkar is widely regarded as the “Chief Architect of the Indian Constitution”.⁶⁷ While the Constitution was a collaborative product, his intellectual leadership, legal acumen, and commitment to social justice were indispensable in shaping its final form.⁶⁷ It is important, however, to acknowledge the crucial groundwork laid by Sir B.N. Rau as Constitutional Advisor ³⁰ and the collective wisdom of the Assembly members.⁶⁷

The Constituent Assembly approved the Draft Constitution on November 26, 1949.⁹ It came into effect on January 26, 1950, marking India’s transition to a sovereign, democratic republic.⁸

Post-Independence Development: Judicial Interpretation and Legislative Action

The adoption of the Constitution in 1950 was not an end point but the beginning of a continuous process of evolution. Constitutionalism in India has been dynamically shaped through formal amendments by Parliament, and perhaps more significantly, through interpretation by the judiciary, particularly the Supreme Court. Key doctrines have emerged, and access to constitutional remedies has expanded over the decades.

Evolution through Constitutional Amendments (1st, 24th, 42nd, 44th)

The Constitution provides for its own amendment under Article 368, reflecting the framers’ understanding that the document needed to adapt to changing societal needs.⁸ Over 100 amendments have been made since 1950.⁷³ Some amendments have been procedural or administrative, while others have profoundly impacted the constitutional framework, particularly concerning fundamental rights, federalism, and the balance of power between state organs. Four amendments stand out in this evolutionary narrative:

• The First Amendment (1951): Enacted shortly after the Constitution’s commencement, this amendment addressed judicial challenges to land reform laws (zamindari abolition) and laws restricting freedom of speech.⁴⁹ It introduced Article 31A and 31B, along with the Ninth Schedule, to shield certain laws (primarily land reforms) from judicial review on grounds of violating Fundamental Rights (especially the right to property, then a fundamental right).⁴⁹ It also amended Article 19(2), adding “public order,” “friendly relations with foreign states,” and “incitement to an offence” as grounds for restricting freedom of speech and expression, clarifying that these restrictions must be “reasonable”.⁴⁹ Furthermore, it added Article 15(4) to explicitly permit the state to make special provisions for the advancement of socially and educationally backward classes, SCs, and STs, overcoming judicial hurdles to affirmative action policies.⁴⁹
• The Twenty-Fourth Amendment (1971): This amendment was Parliament’s response to the Supreme Court’s ruling in Golaknath v. State of Punjab (1967) ⁷⁴, which had held that Parliament could not amend Fundamental Rights. The 24th Amendment amended Article 13 and Article 368 to explicitly affirm Parliament’s power to amend any part of the Constitution, including Fundamental Rights, and made it mandatory for the President to give assent to Constitutional Amendment Bills.⁵⁷ This set the stage for the confrontation culminating in the Kesavananda Bharati case.
• The Forty-Second Amendment (1976): Enacted during the Emergency, this is often called the “Mini-Constitution” due to its sweeping changes.⁴⁹ Key changes included:

• Adding “Socialist,” “Secular,” and “Integrity” to the Preamble.⁴⁹
• Adding Fundamental Duties for citizens (Part IVA, Article 51A).⁵⁷
• Giving precedence to all Directive Principles over Fundamental Rights under Articles 14, 19, and 31.⁵⁷
• Curtailing the power of judicial review of the Supreme Court and High Courts.⁴⁹
• Transferring five subjects (education, forests, weights & measures, protection of wild animals, administration of justice) from the State List to the Concurrent List, increasing centralisation.⁷⁹
• Empowering the Centre to deploy armed forces in states to deal with law and order situations (Article 257A).⁷⁹
• Extending the term of Lok Sabha and State Assemblies from five to six years (later reversed).
• The Forty-Fourth Amendment (1978): Enacted by the Janata Party government after the Emergency, this amendment sought to reverse many of the distortions introduced by the 42nd Amendment and strengthen safeguards against authoritarianism.⁴⁹ Key changes included:

• Restoring the power of judicial review to the Supreme Court and High Courts.⁴⁹
• Deleting the Right to Property from the list of Fundamental Rights (Part III) and making it a legal/constitutional right under Article 300A.⁵²
• Replacing “internal disturbance” with “armed rebellion” as a ground for proclaiming a National Emergency under Article 352, and adding safeguards like requiring written Cabinet recommendation and periodic parliamentary approval.⁷⁹
• Providing that Fundamental Rights under Articles 20 and 21 cannot be suspended during a National Emergency.⁸⁰
• Restoring the term of Lok Sabha and State Assemblies to five years.⁵⁷
• Making explicit that the President must act on the advice of the Council of Ministers but can send the advice back for reconsideration once.⁷⁹

These amendments illustrate the dynamic interplay between parliamentary sovereignty and constitutional principles, often mediated by judicial interpretation, shaping the contours of Indian constitutionalism.

The Doctrine of Basic Structure

Perhaps the most significant contribution of the Indian judiciary to constitutional jurisprudence is the Doctrine of Basic Structure. This doctrine emerged from the conflict between Parliament’s power to amend the Constitution (Article 368) and the scope of Fundamental Rights (Part III). While the 24th Amendment seemingly gave Parliament unlimited amending power, the Supreme Court, in the landmark Kesavananda Bharati v. State of Kerala (1973) case, performed a crucial balancing act.⁵⁶

In a narrow 7:6 majority, the Court held that while Parliament has the power to amend any part of the Constitution, including Fundamental Rights (overruling Golaknath), this power is not unlimited.⁷⁶ Parliament cannot use its amending power to damage, emasculate, destroy, abrogate, change, or alter the “basic structure” or framework of the Constitution.⁷⁶ The power to amend is not the power to destroy the Constitution’s identity.⁷⁶

Though the term “basic structure” is not found in the Constitution itself ⁵⁶, the Court identified several features as constituting it, including (though not exhaustively):

• Supremacy of the Constitution
• Republican and democratic form of government
• Secular character of the Constitution
• Separation of powers between the legislature, executive, and judiciary
• Federal character of the Constitution
• Sovereignty and unity of India
• Welfare state (socio-economic justice)
• Judicial review
• Freedom and dignity of the individual
• Parliamentary system
• Rule of law
• Harmony and balance between Fundamental Rights and Directive Principles
• Principle of equality
• Free and fair elections
• Independence of Judiciary
• Limited power of Parliament to amend the Constitution ⁷⁸

The doctrine was further affirmed and applied in subsequent cases like Indira Nehru Gandhi v. Raj Narain (1975) ⁷⁴ and Minerva Mills v. Union of India (1980) ⁷⁸, where the Court struck down parts of the 42nd Amendment that sought to exclude judicial review of amendments and grant unlimited amending power.⁷² The doctrine acts as a fundamental check on legislative power, ensuring that the core identity and values of the Constitution remain inviolable, even through the amendment process.⁸² It is a unique judicial innovation that has significantly shaped Indian constitutionalism.⁷⁶

Judicial Review: Evolution and Significance

Judicial review – the power of the judiciary to examine the constitutionality of legislative enactments and executive actions – is a cornerstone of Indian constitutionalism.⁷⁴ Unlike the US where it is largely implied, the Indian Constitution explicitly provides for judicial review under various articles, including Article 13 (laws inconsistent with Fundamental Rights are void), Article 32 (right to move Supreme Court for enforcement of Fundamental Rights), and Article 226 (High Courts’ power to issue writs).⁷⁴

The scope and application of judicial review have evolved significantly through landmark Supreme Court judgments:

• Early Phase (Restrictive View): In A.K. Gopalan v. State of Madras (1950), the Court took a narrow view, holding that Article 21 (“procedure established by law”) meant procedure prescribed by enacted law, not necessarily incorporating principles of natural justice or reasonableness, and that Fundamental Rights chapters (like Art 19 and 21) operated in separate silos.⁹⁰
• Assertion over Amendments: The Shankari Prasad (1951) and Sajjan Singh (1965) cases held that constitutional amendments were not “law” under Article 13(2) and thus Parliament could amend Fundamental Rights.⁵⁸ Golaknath (1967) reversed this, holding Fundamental Rights immutable by amendment.⁷⁴
• Basic Structure and Judicial Supremacy: Kesavananda Bharati (1973) established the basic structure doctrine, making constitutional amendments subject to judicial review on the ground of violating this structure.⁷⁴ Indira Gandhi v. Raj Narain (1975) explicitly struck down a constitutional amendment (part of 39th Amendment) for violating basic structure (democracy, rule of law).⁷² Minerva Mills (1980) reaffirmed judicial review as part of the basic structure, striking down clauses of the 42nd Amendment that sought to oust it.⁷⁵
• Expansion of Article 21: Maneka Gandhi v. Union of India (1978) marked a paradigm shift, overruling Gopalan.⁹⁸ It held that “procedure established by law” under Article 21 must be “fair, just, and reasonable,” effectively incorporating principles of natural justice and due process.⁹⁸ It also established the interrelationship between Articles 14, 19, and 21 (the “golden triangle”), meaning any law depriving personal liberty must satisfy the tests of all three articles.⁹⁸ This vastly expanded the scope of Article 21 and judicial review over legislative and executive action affecting personal liberty.⁷⁵
• Review of Administrative Action: Courts routinely review administrative actions for legality, reasonableness, and fairness, ensuring adherence to constitutional and statutory limits.⁷⁴

Judicial review serves as a vital mechanism for upholding constitutional supremacy, protecting fundamental rights, maintaining federal balance, and ensuring government accountability.⁷⁴ It is considered an integral and inviolable part of the basic structure of the Constitution.⁷⁵

Public Interest Litigation (PIL): Expanding Access to Justice

Public Interest Litigation (PIL), emerging prominently in the late 1970s and early 1980s, represents a significant evolution in Indian judicial practice, aimed at democratizing access to justice.¹⁰⁶ Spearheaded by activist judges like Justice V.R. Krishna Iyer and Justice P.N. Bhagwati, PIL departed from traditional adversarial litigation.¹⁰⁷

Key features and evolution:

• Relaxation of Locus Standi: The traditional rule that only the person directly aggrieved could approach the court was relaxed.¹⁰⁶ PIL allows public-spirited citizens, social activists, or organizations to file petitions on behalf of marginalized or disadvantaged groups (like prisoners, bonded labourers, pavement dwellers) who lack the means or awareness to seek justice themselves.⁹¹
• Epistolary Jurisdiction: Courts began accepting letters or postcards detailing grievances as writ petitions, further lowering access barriers.¹¹⁰
• Focus on Public Interest: PIL aims to vindicate public interest, enforce constitutional/legal rights of vulnerable sections, and ensure governmental accountability, rather than resolving private disputes.¹⁰⁶
• Judicial Activism: PIL became a major tool for judicial activism, enabling courts to address systemic issues, enforce fundamental rights (especially Article 21’s expanded scope), and issue directives to executive authorities on matters ranging from human rights violations (e.g., undertrial detention in Hussainara Khatoon) to environmental protection (e.g., M.C. Mehta cases) and social justice.¹⁰⁶
• Landmark Cases: Early PILs like Hussainara Khatoon v. State of Bihar (undertrial prisoners) ¹⁰⁶, Mumbai Kamgar Sabha v. Abdulbhai (workers’ rights) ⁹¹, S.P. Gupta v. Union of India (judicial appointments, affirming relaxed locus standi) ⁹¹, and Bandhua Mukti Morcha v. Union of India (bonded labour) ¹¹⁰ established PIL’s legitimacy and potential.
• Challenges and Criticisms: Over time, PIL has faced criticism for potential misuse (“private interest litigation,” “publicity interest litigation”), judicial overreach into policy domains, burdening the courts, and difficulties in enforcing orders.¹⁰⁶ Courts have become more cautious, emphasizing the need for genuine public interest and discouraging frivolous petitions, sometimes imposing costs.¹⁰⁸

Despite criticisms, PIL remains a vital tool for social justice in India, empowering citizens and holding authorities accountable, although its trajectory has shifted from its initial focus solely on the marginalised.⁹²

Landmark Supreme Court Cases Shaping Constitutionalism

The Supreme Court of India, through its interpretive role, has delivered numerous judgments that have profoundly shaped the understanding and application of constitutional principles. These landmark cases have defined the contours of fundamental rights, the limits of parliamentary power, the nature of federalism, and the scope of judicial review.

A.K. Gopalan v. State of Madras (1950)

This early case involved a challenge to the Preventive Detention Act, 1950, by communist leader A.K. Gopalan.⁹⁵

• Facts: Gopalan was detained under the Act and challenged its validity, arguing it violated his fundamental rights under Articles 14, 19 (freedom of movement, etc.), 21 (protection of life and personal liberty), and 22 (protection against arrest and detention).⁹⁵
• Issues: Key issues were whether the Act was constitutional, the relationship between Articles 19 and 21, and the meaning of “procedure established by law” in Article 21.⁹⁵
• Holding: The Supreme Court, by majority, upheld the validity of the Act (except Section 14 which barred disclosure of detention grounds).⁹⁷ It adopted a narrow interpretation, holding that:

• Article 21’s “procedure established by law” meant procedure enacted by a valid statute, not necessarily embodying principles of natural justice or reasonableness (rejecting the American “due process” concept).⁹⁵
• Fundamental rights under different articles (like 19 and 21) should be read as separate and mutually exclusive. Therefore, a law affecting personal liberty (Art 21) did not need to satisfy the reasonableness test under Article 19.⁹⁵
• Significance: This judgment established a restrictive view of fundamental rights and judicial review early on.⁹⁰ It prioritized state security and legislative power over individual liberty in the context of preventive detention. Its interpretation of Article 21 and the compartmentalization of rights were later overturned in Maneka Gandhi.⁹⁷ Justice Fazl Ali’s dissent, advocating a more liberal interpretation and connection between the articles, foreshadowed later developments.⁹⁶

Kesavananda Bharati v. State of Kerala (1973)

Arguably the most important case in Indian constitutional history, this case addressed the extent of Parliament’s power to amend the Constitution.⁵⁶

• Facts: The petitioner, head of a religious mutt in Kerala, challenged the Kerala Land Reforms Act, 1969 (as amended in 1971) and also the validity of the 24th, 25th, and 29th Constitutional Amendments which sought to curtail property rights and limit judicial review, effectively overturning the Golaknath decision.⁷⁶
• Issues: The central issue was the scope of Parliament’s amending power under Article 368 – could it alter, abridge, or abrogate Fundamental Rights or any part of the Constitution?.⁸¹
• Holding: A 13-judge bench delivered 11 separate opinions, but the summarized majority view (7:6) held that:

• Parliament has the power to amend any provision of the Constitution, including Fundamental Rights (overruling Golaknath).⁷⁶
• However, this power is not unlimited. Parliament cannot amend the Constitution in a way that destroys or abrogates its “basic structure” or framework.⁵⁶
• The 24th Amendment (affirming amending power) was upheld, but parts of the 25th Amendment (curtailing property rights and judicial review concerning certain DPSPs) were struck down or read down.⁸¹ The 29th Amendment (placing the Kerala Acts in the Ninth Schedule) was upheld, but subject to the basic structure test.⁷⁶
• Significance: This case established the Doctrine of Basic Structure, a fundamental principle of Indian constitutional law.⁵⁶ It asserted the judiciary’s power to review constitutional amendments and placed substantive limits on Parliament’s constituent power, ensuring the Constitution’s core identity remains intact.⁵⁶ It represents a unique judicial innovation balancing parliamentary power with constitutional integrity.⁷²

Maneka Gandhi v. Union of India (1978)

This case dramatically expanded the interpretation of Article 21 and redefined the relationship between fundamental rights.⁹⁸

• Facts: The petitioner’s passport was impounded by the government “in the public interest” under the Passport Act, 1967, without providing specific reasons or a prior hearing.⁹⁸ She challenged this action as violating Articles 14, 19, and 21.⁹⁸
• Issues: Key issues included whether the right to travel abroad was part of Article 21’s “personal liberty,” whether the procedure under the Passport Act had to be fair and reasonable, and the relationship between Articles 14, 19, and 21.⁹⁸
• Holding: The Supreme Court delivered a transformative judgment:

• It overruled the narrow interpretation of Article 21 in A.K. Gopalan.⁹⁸
• “Personal liberty” under Article 21 was given a wide interpretation, encompassing various rights constituting personal liberty, including the right to travel abroad.⁹⁸
• “Procedure established by law” in Article 21 does not mean any procedure enacted by the legislature, but one that is “fair, just, and reasonable,” not arbitrary, fanciful, or oppressive.⁹⁸ This effectively imported aspects of procedural due process.
• Articles 14 (equality), 19 (freedoms), and 21 (life and liberty) are not mutually exclusive but form a “golden triangle”.¹⁰² Any law depriving a person of personal liberty must satisfy the requirements of both Articles 19 and 14 as well.⁹⁸ The procedure must be reasonable (Art 14), allow for relevant freedoms (Art 19), and be fair (Art 21).
• The Court emphasized the importance of principles of natural justice (like the right to be heard – audi alteram partem) as implicit in fair procedure.⁹⁸
• Significance: This judgment revolutionized fundamental rights jurisprudence in India.¹⁰³ It vastly expanded the scope of Article 21, making it a reservoir for numerous unenumerated rights (like right to dignity, clean environment, etc.).⁹⁹ It established the requirement of substantive due process (fairness and reasonableness of law) in addition to procedural due process.⁹⁸ It cemented the interconnectedness of fundamental rights, strengthening judicial review.⁷⁵

S.R. Bommai v. Union of India (1994)

This landmark case dealt with the imposition of President’s Rule in states under Article 356, significantly curbing its misuse and strengthening federalism.⁶⁴

• Facts: The case arose from the dismissal of several state governments (including Karnataka under CM S.R. Bommai) by the Central government using Article 356, often on contested grounds of breakdown of constitutional machinery or loss of majority, without allowing floor tests.⁶⁴
• Issues: The main issues were the scope and justiciability of the President’s power under Article 356, the relevance of floor tests, and the implications for federalism and secularism.⁶⁴
• Holding: A nine-judge bench laid down crucial guidelines:

• The proclamation imposing President’s Rule (Article 356) is subject to judicial review.⁶⁴ Courts can examine whether the President’s satisfaction was based on relevant material, whether it suffered from mala fides, or was based on wholly extraneous or irrelevant grounds.⁶⁴
• The test of majority of a state government should normally be conducted on the floor of the Legislative Assembly, not based solely on the Governor’s subjective assessment.⁶⁴
• The President can only suspend the Legislative Assembly upon issuing the proclamation; dissolution can occur only after parliamentary approval of the proclamation.¹²⁰ If Parliament disapproves, the dismissed government and suspended assembly are automatically revived.¹²⁰
• Secularism was declared a basic feature of the Constitution. A state government pursuing anti-secular policies could potentially invite action under Article 356.⁶⁴
• The Court outlined situations where the use of Article 356 would be proper (e.g., complete breakdown of law and order, hung assembly after elections) and improper (e.g., dismissal based on allegations without proof, dismissing a government merely because it lost an election, intra-party problems).⁶⁴
• Significance: The Bommai judgment significantly curtailed the arbitrary use of Article 356 by the Central government, reinforcing the federal structure and the autonomy of state governments.⁶⁴ It established judicial review over this critical power and emphasized democratic principles like the floor test.¹²⁰ It also elevated secularism as a judicially enforceable component of the basic structure.⁶⁴

Indra Sawhney v. Union of India (1992)

Also known as the Mandal Commission case, this judgment dealt extensively with reservations for Other Backward Classes (OBCs) in public employment.¹²³

• Facts: The case challenged the government’s implementation of the Mandal Commission report, which recommended 27% reservation for OBCs in central government jobs, based on Office Memorandums issued in 1990 and 1991.¹²³
• Issues: Key issues included the constitutional validity of reservations based on caste, the definition of “backward class,” the overall limit of reservations, the concept of the “creamy layer,” and reservations in promotions.¹²³
• Holding: A nine-judge bench, by a 6:3 majority, upheld the 27% OBC reservation but laid down several important principles:

• Caste can be a permissible indicator, though not the sole determinant, of social and educational backwardness for the purpose of Article 16(4).¹²⁵ Backwardness must be social and educational, not just economic.¹²³
• The total reservation quota (for SCs, STs, and OBCs combined) should generally not exceed 50%, except in extraordinary circumstances.¹⁰⁷
• The “creamy layer” (socially advanced members) among OBCs must be excluded from the benefit of reservation to ensure it reaches the genuinely disadvantaged.¹²³ The Court directed the government to identify this layer.¹²⁵
• Reservations should apply only at the initial stage of appointment and not in promotions.¹²⁵ (This aspect was later modified by constitutional amendments like the 77th and 85th ¹²⁵).
• A permanent statutory body (later the National Commission for Backward Classes) should be established to examine complaints of inclusion/exclusion from OBC lists.¹²⁴
• Significance: The Indra Sawhney judgment provided authoritative judicial interpretation on the complex issue of reservations, balancing the constitutional goal of social justice with the principle of equality.¹²³ It affirmed the constitutionality of OBC reservations while introducing the crucial concepts of the 50% ceiling and the creamy layer exclusion, significantly shaping India’s affirmative action policies.¹⁰⁷

Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)

This landmark case unequivocally affirmed the Right to Privacy as a fundamental right under the Indian Constitution.⁵⁹

• Facts: The case arose from challenges to the constitutional validity of India’s Aadhaar scheme (biometric identification system), arguing it violated the right to privacy.¹³⁰ The government initially argued that privacy was not a fundamental right.¹³⁰ A nine-judge bench was constituted to settle the question of whether privacy is a fundamental right.¹³²
• Issues: The core issue was whether the Constitution of India guarantees a fundamental right to privacy.¹³⁰
• Holding: The nine-judge bench unanimously held that:

• The Right to Privacy is a fundamental right, protected as an intrinsic part of the Right to Life and Personal Liberty under Article 21 and as part of the freedoms guaranteed by Part III of the Constitution.¹²⁹
• It overruled previous judgments like M.P. Sharma (1954) and parts of Kharak Singh (1962) that had held otherwise.¹³¹
• Privacy includes various aspects like personal autonomy, bodily integrity, informational privacy, and the right to make intimate decisions.¹²⁹
• Like other fundamental rights, the right to privacy is not absolute and can be restricted, but any such restriction must satisfy the tests of legality (existence of law), legitimate state aim, and proportionality (rational nexus, necessity, balancing) – the “threefold requirement”.¹²⁹ The restriction must be by a law that is just, fair, and reasonable.¹²⁹
• Significance: The Puttaswamy judgment is a watershed moment for individual rights in India.¹²⁹ It firmly embedded the right to privacy within the constitutional framework, providing a strong basis for challenging state surveillance, data protection regimes, and other intrusions into personal autonomy.⁵⁹ It reinforced the expansive interpretation of Article 21 initiated in Maneka Gandhi and set the standard (proportionality test) for evaluating restrictions on fundamental rights.⁵⁹

Judicial Trends and Philosophies (Activism vs. Restraint, Key Judges)

The Indian judiciary, particularly the Supreme Court, has exhibited varying approaches over time, often characterized by the tension between judicial activism and judicial restraint.¹¹⁵

• Judicial Activism: This philosophy involves judges playing a more proactive role, interpreting the Constitution liberally to address social issues, protect rights (especially of the marginalized), and fill legislative or executive gaps.¹¹⁵ It often manifests through PIL, expansive interpretation of fundamental rights (especially Article 21), and sometimes issuing guidelines where laws are absent (e.g., Vishaka guidelines on workplace sexual harassment).⁷⁴ Proponents argue it is necessary for social justice and upholding constitutional values when other branches fail.¹¹⁵ Critics, however, warn of judicial overreach, encroachment on legislative/executive domains, lack of expertise in policy matters, and potential for undermining the separation of powers.¹⁰⁸
• Judicial Restraint: This approach emphasizes deference to the elected branches (legislature and executive), strict interpretation of the law based on text and original intent, adherence to precedent (stare decisis), and avoiding policy-making.¹³⁴ Judges practicing restraint hesitate to strike down laws unless clearly unconstitutional.¹³⁷ Proponents argue it respects democratic principles and separation of powers.¹³⁴ Critics argue it can lead to judicial abdication, failing to protect rights or address injustices.¹³⁵

The Indian Supreme Court has oscillated between these approaches. The post-Emergency era saw a surge in activism, particularly through PIL and rights expansion.¹¹¹ Recent years have seen continued activism in some areas (e.g., environmental protection, rights jurisprudence) but also instances perceived as restraint or deference, particularly in cases involving sensitive political or national security issues.¹³⁴

Key Judges and their Philosophies:

• Justice P.N. Bhagwati & Justice V.R. Krishna Iyer: Pioneers of judicial activism and PIL in India.¹⁰⁷ They championed access to justice for the poor and marginalized, expanded the scope of Article 21, introduced epistolary jurisdiction, and emphasized social justice.¹¹⁰ Their philosophy was rooted in making the Constitution a living reality for the masses and holding the state accountable.¹¹⁰ Their “socialist-era” interpretations, particularly regarding economic principles like Article 39(b), have faced recent critique from the current court majority.¹⁴¹
• Justice H.R. Khanna: Renowned for his lone dissent in the ADM Jabalpur v. Shivkant Shukla (Habeas Corpus) case during the Emergency, upholding the right to life and liberty even when fundamental rights were suspended. His stance is revered as a defense of constitutionalism against executive overreach.¹³⁹ He was also part of the Kesavananda bench and contributed significantly to the basic structure doctrine, though his specific formulation differed slightly from the final majority view.⁷²
• Justice D.Y. Chandrachud (as Judge and CJI): Often perceived as progressive, particularly due to involvement in landmark judgments like Puttaswamy (privacy), decriminalization of homosexuality (Navtej Singh Johar), Sabarimala entry, and upholding Delhi government’s powers.¹³⁹ However, his tenure as CJI has also seen criticism regarding the handling of sensitive cases (like marriage equality, Article 370 abrogation), perceived delays, and questions about living up to the ‘progressive’ expectation in defending rights against executive actions.¹³⁹ His recent majority opinion critiquing Justice Krishna Iyer’s interpretation of Article 39(b) sparked dissent from fellow judges.¹⁴¹

The interplay between these judicial philosophies and the specific approaches of influential judges continues to shape the evolution of Indian constitutional law.

Present State of Constitutionalism in India

Constitutionalism in India today faces a complex and challenging environment. While the constitutional framework remains robust on paper, its practical application and the health of its underlying principles are subject to significant debate and strain, marked by concerns over executive dominance, federal tensions, weakening institutions, and pressures on fundamental rights.

Contemporary Challenges

• Executive Influence and Erosion of Checks and Balances: A significant contemporary challenge is the perceived increase in executive power and influence over other institutions, potentially weakening the system of checks and balances.¹⁴⁴ Concerns have been raised about executive interference in judicial appointments and transfers, impacting judicial independence.¹⁴⁵ The rejection of collegium recommendations, delays in appointments, and unexplained transfers fuel these concerns.¹⁴⁵ The striking down of the National Judicial Appointments Commission (NJAC) Act by the Supreme Court aimed to protect judicial independence from executive dominance in appointments, but the resulting standoff highlights the ongoing tension.¹⁴⁶ Furthermore, the use of ordinances, bypassing parliamentary scrutiny, and the push towards centralisation raise questions about the balance of power.⁵³
• Federal Tensions: The delicate federal balance is under strain, particularly concerning fiscal relations and state autonomy.¹⁵¹ The implementation of the Goods and Services Tax (GST) in 2017, while aiming for a unified market, led to states surrendering significant taxation powers.¹⁵³ Issues surrounding the GST Council’s decision-making process (perceived central dominance), delays in compensation payments to states, and differential impacts on manufacturing versus consuming states have created friction.¹⁵² Southern states, in particular, have voiced concerns about fiscal injustice, arguing that they contribute more to central revenues but receive less in return via Finance Commission devolutions, exacerbated by the use of outdated population data (1971 census) for allocation.¹⁵¹ The upcoming delimitation exercise, expected to increase the representation of northern states with higher population growth at the expense of southern states, further fuels these anxieties about political and fiscal power shifts.¹⁵⁸
• Populism, Majoritarianism, and Secularism: The rise of populist and majoritarian politics poses a challenge to India’s constitutional commitment to secularism and minority rights.⁵¹ Critics argue that the current political discourse emphasizes a Hindu nationalist narrative (Hindutva), potentially marginalizing religious minorities, particularly Muslims.⁵¹ Laws like the Citizenship Amendment Act (CAA), 2019, which excludes Muslims from its expedited citizenship pathway for refugees from neighboring countries, have been criticized for violating constitutional principles of equality (Article 14) and secularism.¹⁶⁹ The push for a Uniform Civil Code (UCC) also raises concerns among minorities about the potential erosion of personal laws and cultural autonomy.⁶³ Increased instances of hate speech and violence against minorities further strain the secular fabric.⁵¹ This trend aligns with global patterns of populism challenging liberal democratic norms by prioritizing a majoritarian “people” over constitutional constraints and minority protections.¹⁶¹
• Shrinking Space for Dissent: Concerns exist about a shrinking space for dissent and criticism of the government.¹⁴⁴ Harassment of journalists, activists, academics, and NGOs through state action (e.g., financial probes, sedition charges, counterterrorism laws like UAPA) or online campaigns has been reported.¹⁴⁴ Restrictions on foreign funding for NGOs (FCRA) have also been tightened, impacting civil society operations.⁵¹ This chilling effect on free expression and association challenges fundamental democratic freedoms guaranteed by the Constitution.¹⁷⁰

Functioning of Constitutional Institutions

The health of constitutionalism depends heavily on the effective and independent functioning of key institutions.

• Parliament: There is evidence suggesting a decline in parliamentary deliberation and scrutiny. Fewer bills are being referred to parliamentary committees for detailed examination compared to previous periods.¹⁴⁴ Laws are sometimes passed with minimal debate.¹⁴⁴ State legislatures also meet for significantly fewer days than recommended, often concentrating work in brief budget sessions.¹⁷⁶ This trend weakens the legislature’s role in holding the executive accountable and ensuring legislative quality.¹⁴⁴
• Judiciary: While the judiciary remains a vital check, it faces challenges related to independence (discussed above), huge case backlogs (pendency), and vacancies.¹⁴⁶ As of early 2025, over 80,000 cases were pending in the Supreme Court alone, with cases often taking years to conclude.¹⁴⁶ Infrastructure and technological gaps, especially in lower courts, hinder efficiency.¹⁴⁶ Concerns about judicial overreach persist in some quarters, while in others, the judiciary is criticized for perceived delays or deference to the executive in crucial constitutional matters.¹¹⁵ The collegium system for appointments, while intended to ensure independence, faces criticism for opacity.¹⁴⁵ Post-retirement appointments of judges to government positions also raise concerns about potential conflicts of interest.¹⁴⁵
• Election Commission of India (ECI): The ECI is mandated to conduct free and fair elections.¹⁷⁸ Its independence is crucial for democratic legitimacy. However, recent changes to the appointment process for Election Commissioners, replacing the Chief Justice of India with a Union Cabinet Minister on the selection committee, have raised concerns about increased executive influence over the ECI’s appointment, potentially compromising its independence.¹⁷⁹ The ECI’s role in regulating campaign finance (especially post-Electoral Bonds judgment) and addressing issues like hate speech and misinformation remains critical.¹⁸⁰
• Other Institutions: The functioning and independence of other ‘fourth branch’ institutions like the Comptroller and Auditor General (CAG), Central Bureau of Investigation (CBI), Reserve Bank of India (RBI), National Human Rights Commission (NHRC), and Information Commissions are also vital for accountability.¹⁸¹ Concerns about executive pressure or weakening of these bodies have been periodically raised.¹⁸¹

Ongoing Debates (CAA, UCC, Art 370, Data Privacy)

Several recent legislative and executive actions have sparked intense constitutional debates:

• Citizenship Amendment Act (CAA), 2019: As mentioned, its exclusion of Muslims from the expedited citizenship pathway for certain religious minorities from Pakistan, Bangladesh, and Afghanistan is challenged as violating Article 14 (equality) and the secular fabric of the Constitution.¹⁶⁹ The government defends it as addressing historical persecution of minorities in neighboring theocratic states.¹⁶⁹ The potential link with a nationwide National Register of Citizens (NRC) raises fears of disenfranchisement, particularly among Muslims.¹⁷² The matter is pending before the Supreme Court.¹⁷³
• Uniform Civil Code (UCC): The push for a UCC (Article 44, DPSP) has gained momentum, with states like Uttarakhand enacting legislation.⁶³ Proponents argue it promotes gender justice and national integration by replacing diverse personal laws based on religion with a single code for matters like marriage, divorce, inheritance.⁶³ Opponents, primarily minority groups, fear it will impose majoritarian norms and infringe on religious freedom and cultural autonomy guaranteed by the Constitution.⁶³ The debate involves balancing equality and non-discrimination with the right to freedom of religion and cultural practices.
• Abrogation of Article 370: The 2019 executive actions removing the special status of Jammu & Kashmir under Article 370 and bifurcating the state into Union Territories were challenged constitutionally.¹⁴³ The Supreme Court upheld the abrogation in December 2023, deeming Article 370 a temporary provision and the President’s actions valid.¹⁴³ However, the manner of its implementation (lockdown, communication blackout, detention of political leaders) raised concerns about democratic processes and civil liberties.¹⁴⁴ The decision’s impact on federalism and Kashmiri autonomy remains debated.
• Data Privacy: Following the Puttaswamy judgment affirming the right to privacy, India enacted the Digital Personal Data Protection Act, 2023.¹³³ While aimed at protecting personal data, the Act has been criticized for granting broad exemptions to government agencies (especially for security, public order, crime prevention), potentially weakening privacy safeguards against state surveillance, and lacking a truly independent regulator.¹³³ Balancing individual privacy with state interests (security, innovation) remains a key challenge.¹³⁰

State of Democracy Reports (V-Dem, Freedom House)

International democracy indices have reflected concerns about the state of constitutionalism and democracy in India.

• V-Dem Institute: Has downgraded India from an “electoral democracy” to an “electoral autocracy”.¹⁷⁵ Its reports highlight declines in freedom of expression, association, and clean elections, attributing this primarily to subjective expert evaluations.¹⁸³ The 2025 report notes a global trend of autocratization, with India being a significant part of this trend, citing media censorship and undermining of civil society as key issues.¹⁸⁴
• Freedom House: Downgraded India’s status from “Free” to “Partly Free” in 2021.¹⁷⁵ Its reports cite discriminatory policies affecting the Muslim population, increased harassment of journalists and critics, and the use of government institutions against political opponents as reasons for the decline in political rights and civil liberties.¹⁷⁰
• Economist Intelligence Unit (EIU): Places India in the “Flawed Democracy” category, noting a deterioration in rank between 2014 and 2020, followed by a slight improvement.¹⁸⁵

While the Indian government has contested these rankings, often citing methodological flaws or bias ¹⁷⁵, they reflect growing international concern about democratic backsliding and challenges to constitutional norms in India.

Future Prospects of Constitutionalism in India

The future trajectory of constitutionalism in India will be shaped by its ability to navigate emerging challenges, adapt through necessary reforms, and uphold its core values amidst evolving socio-political and technological landscapes.

Emerging Challenges

• Technology, Artificial Intelligence (AI), and Constitutionalism: Rapid technological advancements, particularly in AI, present profound challenges and opportunities.¹⁸⁶

• Opportunities: AI can potentially aid governance, economic development (#AIforAll strategy), and address complex issues like climate change (optimizing energy, improving modeling).¹⁸⁶
• Challenges: AI raises significant ethical and constitutional concerns regarding bias, discrimination, misinformation, job displacement, surveillance, and the concentration of power in tech companies.¹⁸⁷ The environmental impact of AI (energy consumption, e-waste) is also a growing concern.¹⁹⁰ Regulating AI involves balancing innovation with risk mitigation.¹⁸⁶ India’s current approach leans towards light, possibly sectoral, regulation, but debates continue on the need for comprehensive frameworks grounded in constitutional principles like privacy, equality, and non-discrimination.¹⁸⁷ The horizontal application of constitutional rights to private tech platforms is an emerging legal frontier.¹⁹³

• Climate Change and Environmental Constitutionalism: Climate change poses an existential threat, demanding robust legal and constitutional responses.¹⁸⁹ The Supreme Court’s recognition in M.K. Ranjitsinh (2024) of a fundamental right to be free from the adverse effects of climate change, derived from Articles 14 and 21, marks a significant development in Indian environmental constitutionalism.¹⁹⁴ This potentially strengthens legal avenues for climate action and litigation. However, challenges remain, including the lack of comprehensive climate legislation in India ¹⁹⁴, balancing environmental protection with development needs (as highlighted in the Ranjitsinh judgment’s deference to cost-benefit analyses for renewable energy projects) ¹⁹⁴, and addressing the environmental footprint of technologies like AI.¹⁹⁰
• Socio-Economic Inequalities: Despite constitutional goals of socio-economic justice, vast disparities persist in wealth, education, healthcare, and access to opportunities.¹⁹⁵ The non-enforceability of Directive Principles remains a limitation.¹⁹⁵ Addressing these inequalities is crucial for realizing the Constitution’s transformative potential and ensuring substantive equality.¹⁹⁵
• Sustaining Democratic Institutions: Ensuring the continued independence and effectiveness of Parliament, the Judiciary, the Election Commission, and other oversight bodies against executive encroachment and political pressures is paramount for the future health of constitutional democracy.¹⁴⁵

Prospects for Reform

Addressing current and future challenges necessitates ongoing reflection and potential reforms across various domains:

• Electoral Reforms:

• Simultaneous Elections: The proposal for ‘One Nation, One Election’ aims to improve efficiency and reduce disruption.²⁰⁰ The Kovind Committee has recommended a phased approach requiring constitutional amendments, but achieving political consensus remains a hurdle.²⁰⁰
• Campaign Finance: Following the striking down of Electoral Bonds ¹⁸⁰, there is a pressing need for transparent and equitable mechanisms for political funding to curb cronyism and ensure a level playing field.²⁰¹ Recommendations from bodies like the Law Commission on state funding, expenditure limits, and disclosure need serious consideration.²⁰³
• Delimitation and Federalism: The impending delimitation exercise necessitates careful handling to avoid exacerbating North-South tensions.¹⁵⁸ Solutions might involve alternative representation formulas (like degressive proportionality) or, more fundamentally, linking delimitation to a broader renegotiation of fiscal federalism and power-sharing arrangements between the Union and States to address the concerns of losing states.¹⁵⁸
• Other Reforms: Proposals from the Law Commission and other bodies include curbing criminalization, regulating opinion polls and paid news, and potentially exploring compulsory voting.²⁰³
• Judicial Reforms:

• Appointments: Reforming the judicial appointment process to enhance transparency and objectivity, while preserving independence, remains critical. Whether this involves refining the Collegium system or revisiting a mechanism like the NJAC (addressing the concerns raised by the SC) is a key debate.¹⁴⁵ Establishing clear, merit-based criteria is essential.¹⁴⁷ The proposal for an All India Judicial Service (AIJS) for subordinate judiciary recruitment is also periodically discussed.¹⁴⁶
• Accountability: Strengthening judicial accountability mechanisms beyond impeachment, perhaps through a more robust and transparent ‘In-House Procedure’ or a statutory Judicial Council, is needed.¹⁴⁵ Clear codes of judicial conduct are also recommended.¹⁴⁷
• Pendency and Access: Tackling case backlogs requires multi-pronged strategies, including infrastructure improvements, technological integration (e-courts), strengthening Alternative Dispute Resolution (ADR) mechanisms like mediation and Lok Adalats, and procedural reforms.¹⁴⁶ Improving access for ordinary citizens remains vital.¹⁴⁶
• Listing and Allocation: Ensuring transparency and removing arbitrariness in the listing and allocation of cases by the Chief Justice is important for maintaining public trust.¹⁴⁵
• Federal Reforms:

• Fiscal Federalism: Re-evaluating Centre-State fiscal relations, potentially strengthening the role and autonomy of State Finance Commissions, ensuring timely and adequate resource transfer, and possibly reforming the GST structure or compensation mechanisms are crucial for reducing tensions.¹⁵¹ Linking Finance Commission recommendations with the GST Council could be explored.¹⁵¹
• Institutional Mechanisms: Strengthening institutions like the Inter-State Council or NITI Aayog to foster genuine cooperative federalism could be beneficial.¹⁵³

Expert Perspectives

Scholarly analysis offers critical perspectives on the future of Indian constitutionalism:

• Pratap Bhanu Mehta: Has expressed concerns about the erosion of constitutional values, the rise of executive power, the weakening of institutional checks, and the potential for “judicial barbarism” or excessive deference by the judiciary.¹⁷⁷ He emphasizes the need for constitutionalism to be upheld beyond the courts, through political and civic action.¹⁷⁷
• Gautam Bhatia: Analyzes the Constitution as a “terrain of contestation” between centralizing and decentralizing/rights-protective visions of power.⁵³ He argues that judicial interpretations, particularly at key inflection points, have often favored the centralizing vision, impacting federalism and legislative-executive relations.⁵³ He highlights the ongoing relevance of these power contests in contemporary issues ⁵³ and stresses the importance of constitutional scholarship in keeping alternative visions alive for the future, even amidst present challenges.¹⁹³
• Other Scholars (Austin, Khosla, Roux, etc.): Granville Austin emphasized the Constitution as a “social document” aiming for “social revolution” alongside political democracy and unity.⁴ Madhav Khosla highlights the framers’ deliberate choice of a codified constitution as a pedagogical tool for a new democracy and the centralizing impulse to combat localism.²⁰⁸ Upendra Baxi noted the shift from the progressive judicial philosophy of judges like Iyer and Bhagwati towards neo-liberal influences.¹⁴¹ Scholars like Rohit De and Ornit Shani emphasize constitution-making beyond the Constituent Assembly, involving diverse publics.³³ The challenge of “decolonising” constitutional imagination while upholding liberal values remains a key theme.¹⁹⁸ The potential for postcolonial constitutionalism to be transformative, particularly for marginalized groups like women, is debated against its limitations in overcoming entrenched inequalities and patriarchal structures.¹⁹⁶

These perspectives underscore the dynamic, contested, and evolving nature of Indian constitutionalism, emphasizing the continuous need for vigilance, adaptation, and engagement from citizens, institutions, and scholars to realize its promises.

Conclusion

The journey of constitutionalism in India presents a compelling narrative of adaptation, contestation, and transformation. Emerging from ancient notions of righteous rule and shaped significantly by colonial legislative frameworks and the aspirations of a powerful nationalist movement, the Indian Constitution was framed as a unique charter – one aiming not merely to limit state power but to actively engineer a social revolution towards justice, liberty, equality, and fraternity in a deeply diverse and hierarchical society.⁴

The post-independence era witnessed the Constitution’s evolution through numerous amendments, reflecting responses to societal changes and political exigencies, notably the 1st, 42nd, and 44th Amendments which significantly impacted fundamental rights and the balance of power.⁴⁹ The judiciary emerged as a crucial player, developing landmark doctrines like the Basic Structure doctrine in Kesavananda Bharati to safeguard the Constitution’s core identity against unfettered amendment power ⁵⁶, and expanding the horizons of fundamental rights, particularly Article 21, through transformative interpretations in cases like Maneka Gandhi and Puttaswamy.⁹⁸ Innovations like Public Interest Litigation further democratized access to justice, empowering citizens and enabling judicial intervention in matters of public concern.¹⁰⁶

However, the present state of constitutionalism in India is marked by significant challenges. Concerns about executive aggrandizement, weakening institutional checks and balances (including judicial independence and parliamentary scrutiny), rising federal tensions fueled by fiscal centralisation and impending delimitation, and the pressures of majoritarian populism on secularism and minority rights dominate contemporary discourse.¹⁴⁴ The functioning of constitutional bodies like the Election Commission faces scrutiny ¹⁷⁹, and the space for dissent appears constricted.¹⁴⁴ International indices reflect a perceived decline in democratic health.¹⁷⁰

Looking ahead, Indian constitutionalism must grapple with novel challenges posed by rapid technological change, particularly AI, and the urgent imperative of climate action, now framed within a constitutional right.¹⁸⁷ Prospects for strengthening constitutional governance lie in meaningful reforms – electoral reforms promoting transparency and fairness, judicial reforms enhancing independence and accountability, and federal adjustments addressing fiscal and political imbalances.¹⁴⁷

Ultimately, the future of constitutionalism in India hinges not just on the text of the Constitution or the pronouncements of courts, but on the commitment of its political class, institutions, and citizenry to uphold its core values.²⁰² It requires continuous engagement, robust public deliberation, and the resilience to defend democratic principles and fundamental rights against contemporary pressures. The Indian Constitution remains a “living document” ⁸, its success dependent on the collective will to navigate the complexities of the 21st century while staying true to its foundational promise of a just, equitable, and democratic republic.

Works cited

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