The Indian Constitution


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The Oxford Handbook of
THE INDIAN CONSTITUTION
Edited by
SU J I T C HOU DH RY, M A DH AV K HO SL A ,
and
PRATAP BHANU MEHTA

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Chapter 8
Constitutional Change
a public choice analysis
Shruti Rajagopalan
I. Introduction
Parliament has amended the Indian Constitution a hundred times since its ratification in 1950. The fundamental rights listed in Part III of the Constitution were frequently amended and some constitutional protections, such as the right to private property, deleted.1
A closer look reveals that the fundamental rights were amended to accommodate positive entitlements for specific groups and interests. Balancing negative rights and positive entitlements, or constitutionally reconciling the fundamental rights with the Directive Principles of State Policy [hereinafter DPSP], has been the tough task faced by every government since 1950.2 This has led to frequent amendment of the Constitution in Parliament, and frequent interventions by the judiciary.
Amendments to the Constitution, especially to the fundamental rights, have two starkly different patterns in Indian constitutional history. During 1950–8​ 0, Parliament was the battleground for seeking formal constitutional amendments; while post-​1980, the Supreme Court became the power centre, with interest groups seeking amendments through interpretation.3
This becomes more puzzling when one considers the similarity in these two phases. The nature of the positive entitlement and the beneficiary may differ, but what is remarkably constant is the struggle to accommodate positive entitlements, usually fulfilling the DPSP, within the framework of the negative rights outlined in the Constitution. What has shifted is the form and forum for amending negative rights to accommodate positive entitlements.
1  Twenty-​one Amendments have directly amended fundamental rights. 2  HM Seervai, Constitutional Law of India, vol 2 (4th edn, Universal Book Traders 2002) 1921–2​ 020; SP Sathe, Judicial Activism in India (Oxford University Press 2011) 209–3​ 5. 3  The judiciary getting more involved in everyday matters and rights and entitlements of citizens is discussed in Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’ (1985) 4 Third World Legal Studies 107; Burt Neuborne, ‘The Supreme Court of India’ (2003) 1 International Journal of Constitutional Law 476; Pratap Bhanu Mehta, ‘The Rise of Judicial Sovereignty’ (2007) 18 Journal of Democracy 71.

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What is the reason for this shift of interest-​group activity from the legislature to the judiciary? The existing literature has attributed this shift to the increasing power of the Indian Supreme Court; coalition politics; changes in ideology; greater emphasis on positive rights; etc.4 In this chapter, I explain the change in constitutional amendments using economic analysis.5
An interest group attempting to change the Constitution has the option of approaching Parliament for an amendment, or alternatively, approaching the Supreme Court to favourably change the interpretation of the constitutional rule. To decide between the two forums and the associated forms, the interest group determines the expected costs and benefits of each option, and chooses the forum that maximises net expected benefit. Unlike the typical explanations from the perspective of the legislature or judiciary supplying the changes in rules, this chapter offers a demand-​driven explanation, analysing the incentives of interest groups seeking rule changes.
To explain amendments in India, I argue that the change in substantive and procedural rules changed the costs and benefits of amending the Constitution, and therefore changed the incentives of interest groups pursuing amendments. This led interest groups to shift the form and forum while seeking rule change.6
Existing explanations centre on whether the legislature or the judiciary should be the guardian of the Constitution, thereby controlling the supply of rule changes. This chapter moves away from conventional doctrinal analysis and shifts the debate to constitutional design by looking at the costs and benefits imposed by different constitutional rules.
I present a framework to understand the choice of an interest group choosing between these two forms and forums to amend the fundamental rights. I demonstrate that, with the interaction of constitutional rules, the relative price of seeking formal amendments to the Constitution has increased, incentivising interest groups to seek rule changes through the judiciary.
II.  An Analytical Framework for Constitutional Amendments
The central feature in this analysis is individual behaviour, and that individuals are pursuing their self-​interest, though self-​interest is not narrowly defined.7 These individuals act within a set of constraints determined by the existing constitutional rules.
4  Baxi (n 3); Neuborne (n 3); Mehta (n 3). 5  Economic analysis can be used to analyse political behaviour. Public Choice theory extends the self-​ interested individual assumptions from the market to political behaviour. See James M Buchanan and Gordon Tullock, The Calculus of Consent (Liberty Fund 1999). 6  I present a positive theory of constitutional change and maintenance to explain this trend in Indian constitutional history. I do not discuss the normative implications of frequent amendments, or positive entitlements these amendments enabled. The purpose of this chapter is not to analyse the content of each amendment. 7  Self-​interest only requires that the interest of his opposite number in the exchange be excluded from consideration. The individual legislator, judge, bureaucrat, or political entrepreneur can be motivated

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Constitutional Change   129
Political entrepreneurs and interest groups are motivated by expected returns from a particular rule change. They may use political activity for gain in the form of entitlements, benefits, targeted transfers, direct subsidies, tax breaks, control over licensing, price and quantity controls—​more generally known as rent seeking.8
First, an interest group can lobby the executive—t​o either favour it in enforcement or change the rule through an executive ordinance.9 Secondly, it can lobby the legislature to enact a statute in its favour.10 Thirdly, it can petition the judiciary for a favourable interpretation of existing statutes.11 In order to determine whether the interest group lobbies the executive, legislature, or judiciary, it determines the expected return to each option.
Where efforts to gain rents at the policy level are declared unconstitutional, entrepreneurial efforts may focus on a higher constitutional level, that is, to change the constitutional rules.
Constitutional rules create constraints within which an individual or an interest group chooses the form and forum of constitutional amendments. However, expectations of changes to these constitutional rules also create incentives for seeking amendments. Therefore, any analysis of interest groups seeking amendments must include: (i) the costs and benefits imposed by the existing set of rules; (ii) the expected costs and benefits from the rule change.
Constitutional rules governing the legislative or judicial process impact the expected costs and benefits for interest groups and political entrepreneurs through two types of constraints: first, the domain of what can or cannot be collectively decided (substantive rules) and secondly, the process by which the collective decision making will be made (procedural rules). An independent judiciary enforces both substantive and procedural constitutional rules.
In the Indian context, we can identify the substantive rules as the fundamental rights in Part III, and the DPSP in Part IV of the Constitution. The fundamental rights impose constraints on the ability of individuals and interest groups to redistribute and capture transfers and positive entitlements. Amending the fundamental rights, or removing the constraints to enable transfers and positive entitlements represents the potential benefit available to interest groups. The DPSP allow for positive entitlements for groups, though unenforceable in courts. Therefore, constitutional amendments tend to take the form of allowing for the DPSP, which are otherwise constrained by the fundamental rights. Article 368 represents the procedural costs faced by individuals and interest groups ­lobbying Parliament.
Existing procedural rules determine the costs imposed on the interest group seeking a rule change and the change in substantive rule represents the benefit to the interest group.
for various reasons. The motivation for the rule change may be that the individual truly believes in a different and more just distribution of resources. But the pursuit of the rule change as an end would be characterised as pursuing his self-i​nterest. See Buchanan and Tullock (n 5).
8  Robert D Tollison, ‘Rent Seeking: A Survey’ (1982) 35 Kyklos 575. 9 Susan M Olson, ‘Interest-g​roup Litigation in Federal District Court: Beyond the Political Disadvantage Theory’ (1990) 52 Journal of Politics 854. 10  George J Stigler, ‘The Theory of Economic Regulation’ (1971) 2 The Bell Journal of Economics and Management Science 3; Sam Peltzman, ‘Toward a More General Theory of Regulation’ (1976) 19 Journal of Law and Economics 211. 11  Warren J Samuels, ‘Interrelations between Legal and Economic Processes’ (1971) 14 Journal of Law and Economics 435.

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130   Shruti Rajagopalan
1. Procedural Rules
Procedural rules determine how legislative decisions will be made. Procedural rules to enact legislation specify the type of legislature, the veto power of the President or council, the majority requirements of the voting rule, etc. In a parliamentary system, not just the number of votes required but also the number of parties forming the majority group, and the dynamics of coalition politics impact on organisational costs.
The Indian central legislature is bicameral, comprising a Lower House and an Upper House. To pass legislation requires a simple majority of members present and voting in each House of Parliament (Article 100(1)) with a minimum quorum of one-t​enth of the members of the House (Article 100(3)). Legislation also requires Presidential approval, which the President may withhold. To pass ordinary legislation in a State requires the majority of members present and voting in the State legislature (Article 189(1)), with a minimum quorum of one-​tenth of the members of the House (Article 189(3)). It then requires the State Governor’s approval, which the Governor may withhold. Procedural costs of passing legislation in States are lower than in Parliament, as State legislatures are smaller in size, and twenty-​two of the twenty-​nine States’ legislatures are unicameral.
The Constitution includes specific provisions on the powers of Parliament to formally amend the Constitution (Article 368). Only Parliament can enact formal amendments to the Constitution. The Constitution can be divided in three categories based on the procedure required to amend these clauses. First, some clauses of the Constitution may be amended with a simple majority.12 Secondly, amendments to provisions pertaining to separation of powers and federalism, also called ‘entrenched clauses’ of the Constitution, require ratification by at least half the State legislatures, in addition to a supporting vote by the majority of the total membership of the House, with not less than two-t​hirds of the members present and voting in each House of Parliament, and Presidential approval.13 Thirdly, amendments to most provisions of the Constitution, including the fundamental rights, may be initiated in either House of Parliament and require a majority of the total membership of the House with not less than two-​thirds of the members present and voting in each House of Parliament, and Presidential approval.14
Procedural rules impose organisational costs on interest groups seeking a rule change. Voting rules with simple majority requirements impose lower organisational costs on a group seeking a favourable rule change, relative to voting rules that require super-m​ ajority or unanimity. Clauses specifying quorum requirements, bicameral legislatures, super-​ majority requirements, ratification by States, Presidential assent, etc, are procedural rules imposing additional costs.
Under Article 368, the fundamental rights can be amended relatively easily. The amendment procedure has a super-m​ ajority requirement only for the quorum, and only a majority of votes required to pass in each House. This amounts to a relatively easy procedure to amend
12  Constitution of India 1950, arts 2, 11, 59(3), 73(2), 75(6), 97, 105(3), 124(1), 125(2), 133(3), 135, 137, 148(3), 158(3), 171(2), 221(2), 343(3), 348(1), and Schedules 5 and 6.
13  Constitution of India 1950, arts 54, 55, 73, 162, 124–4​ 7, 214–​31, 241, 245–5​ 5, 368; and any of the Lists in the Seventh Schedule.
14  The only exception is the First Amendment, passed by a unicameral Provisional Parliament of India in 1951, before the bicameral legislature was established.

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the Indian Constitution compared to procedures laid down in other constitutions (which typically require super-​majority voting rules to amend rights) and also compared to other provisions within the Indian Constitution (such as amending provisions on federalism, separation of powers, etc), which require ratification by the States.
Similarly, there are organisational and administrative costs for seeking rule changes through the judiciary. These include court fees, litigation costs, and also the procedures and time frames involved in petitioning courts, appeals processes, the size of the bench where the interest group is seeking a rule change, etc. There are two different types or stages of organisational costs. Locus standi requirements, court filing fees, etc determine the relative costs of approaching the judiciary. On the other hand, once the suit is filed, the size of the bench, constitutional bench, etc, determines the costs of securing a favourable verdict.
A trend lowering costs of approaching the judiciary is the dilution of the locus standi requirements post-​Emergency. Instrumental in lowering costs for interest groups in securing favourable verdicts is the size of the bench. In the 1950s, almost half the constitutional benches of the Supreme Court had more than five judges. This decreased to 15 per cent by the late 1970s, and is steadily decreasing thereafter.15
In addition to imposing costs for a specific type of rule change in a specific forum, differences in procedural rules also provide the relative price of approaching different forums for rule changes.16 For instance, voting rules where the quorum requirement is 10 per cent versus 66 per cent change the relative price of approaching the legislature versus the judiciary.
2. Substantive Rules
Substantive rules specify requirements with respect to what may or may not be the content of legislation. Common substantive rules include individual rights within the framework of constitutional rules. Typically, substantive rules restrain the State from action on certain spheres. However, substantive rules may also be written to require a positive action by the State. One can make this distinction of negative and positive rights based on whether they involve a ‘duty of restraint’ or a ‘duty to facilitate entitlements’ from the State.
In 1950, Part III of the Constitution guaranteed fundamental rights, including the right to equal treatment and protection under the law, right to private property, freedom of speech and religion, and most importantly right to writ remedy through an independent judiciary. These rights were strong, specific, and generally applicable to all, with few exceptions (accommodating enforceable positive entitlements to protect backward classes, women, minorities, etc). The Constitution also included the DPSP, which outlined positive non-​enforceable rights for citizens. At the time of ratification, the positive entitlements provided under the DPSP were not enforceable, and did not infringe on or contract the fundamental rights.
However, positive and negative rights have been in constant conflict. Political entrepreneurs can lobby to change substantive rules to accommodate the tensions between positive
15  Nick Robinson and others, ‘Interpreting the Constitution: Supreme Court Constitutional Benches since Independence’ (2011) 46(9) Economic and Political Weekly 27.
16 Paul H Rubin, Christopher Curran, and John F Curran, ‘Litigation versus Legislation: Forum Shopping by Rent Seekers’ (2001) 107 Public Choice 295.

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132   Shruti Rajagopalan
and negative rights. Since negative rights restrict the State from making wealth transfers and favouring specific individuals or groups, it may be to the benefit of individuals to organise into interest groups and seek exceptions to these rules.
Amendment of substantive rules leads to expansion and contraction of specific rights. In India, during 1950–​80 there was an explicit contraction of negative rights and post-​1980 there was an explicit expansion in positive rights. However, in both time periods what is implicit is that the expansion of positive rights leads to contraction of negative rights, and vice versa. They are just flip sides to the fundamental conflict between negative and positive rights.17 What is interesting in the Indian case is that the form of these expanding and contracting rights changed. Initially, negative rights were formally contracted in Parliament to expand positive entitlements. And in the second phase, positive entitlements were expanded by interpretation, thereby contracting negative rights.
3. Choosing the Forum for Amendments
If the Constitution contains strong substantive rules and weak procedural rules, interest groups are more likely to lobby the legislature to formally change the rules. Weak procedural rules imply relatively low costs associated with obtaining the requisite change in the rules through the legislature. A judiciary enforcing strong substantive rules prevents positive entitlements to particular groups, incentivising interest groups to seek constitutional amendments, because changing the substantive rule may benefit the interest group.
There is another element to this calculation. These benefits from changing the substantive rule must necessarily exceed the costs imposed by procedural rules. The higher the majority requirements (ratification, quorum, etc), the higher will be the costs of gaining the formal amendment. Therefore, where procedural rules are weaker, it is more likely that interest groups lobby for a formal amendment of the Constitution through the legislature. This is even more likely when the procedural rules of approaching the legislature are relatively lower cost than the procedural rules for approaching the judiciary.
The period 1950–8​0 witnessed an independent judiciary enforcing strong fundamental rights, unenforceable DPSP, and a relatively easy procedure to amend the fundamental rights, resulting in constitutional amendments by Parliament to weaken fundamental rights. It was relatively difficult to approach the Supreme Court for constitutional rule changes, as it adopted a strict interpretation of rules, strong locus standi requirements, and large average bench size. In this phase, the formal amendments in Parliament would be the form and forum of constitutional change. This is demonstrated in detail in Section III.1.
If the Constitution contains relatively weak substantive rules, and strong procedural rules to amend the Constitution, interest groups are more likely to seek amendments through interpretation by the judiciary.
With weak substantive rules, providing exceptions to general rules and allowing for positive transfers, legislation giving effect to these entitlements may escape constitutional challenge. Weak substantive rules—​in the Indian case conflicting positive and negative rights—​have two effects. First, more special-i​nterest legislation is allowed under existing constitutional rules, and therefore interest groups need to seek fewer constitutional
17  Seervai (n 2) 1921–2​ 020; Sathe (n 2) 209–3​ 5.

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Constitutional Change   133
amendments. Secondy, if the legislation is not allowed by the Constitution, weak substantive rules allowing for many exceptions provide greater opportunity for the judiciary to give a broad interpretation, thereby informally amending the rule. Therefore seeking a formal rule change may be relatively less beneficial and more costly than approaching the judiciary.
While choosing between the judiciary and the legislature, interest groups must also consider costs, and ascertain whether the benefits of pursuing the amendment outweigh the costs. Strong procedural rules impose greater organisational costs and therefore interest groups are less likely to seek formal constitutional amendments from the legislature. This is especially true when the procedural rules of approaching the judiciary are relatively lower cost than the procedural rules for amending the Constitution in the legislature.
Since 1980, the Court has enforced weaker fundamental rights (weakened by frequent amendment), and placed a stronger constraint on Parliament’s ability to amend the Constitution. While there has been no change to the weak procedure to amend the Constitution under Article 368, the emergence of strong judicial precedent in Kesavananda Bharati v State of Kerala18 (hereinafter Kesavananda Bharati) that created a requirement of judicial approval of constitutional amendments, has made the procedure to amend the Constitution through Parliament relatively more costly.
Further, post-​Emergency, the Supreme Court has reduced locus standi requirements. Other factors have also changed—for instance, a decrease in the average size of constitutional benches. These actions have reduced the costs imposed on interest groups to approach the judiciary, resulting in increased interest-g​ roup activity through the courts relative to the legislature. This is demonstrated in detail in Section III.2.
III.  Interest Groups Negotiating the Constitution
Since the Constitution was adopted in 1950, its rules have evolved. The fundamental rights were gradually weakened through formal amendment, and in response the judiciary imposed additional constraints on Parliament’s ability to amend the Constitution. This changed the incentives faced by groups demanding rule changes. There was a shift in the relative costs and benefits of seeking formal amendments, that is, formal amendments by the legislature became relatively higher priced than amendments through interpretation by the judiciary. Constitutional amendments saw a shift from formal amendments through Parliament until 1980 to amendments through interpretation by the judiciary after 1980.
1. Phase I (1950–​80): Amendment by Parliament
At the time of ratification, the positive entitlements provided under the DPSP were not enforceable, and the Constitution contained strong enforceable fundamental rights. Article 368
18  (1973) 4 SCC 225.

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provided a relatively easy amendment procedure for fundamental rights. This framework of rules created problems and opportunities for the government policies at the time.
The most pressing matter for India’s first government was large-s​ cale land reform. The focus was on abolition of the zamindari system, imposing agrarian land ceilings, and redistributing surplus landholdings, to further economic egalitarianism. Towards this end, various States formulated legislation to take land from zamindars and redistribute it among peasants.
The biggest challenge was to provide just compensation, required by Article 31, for land to be acquired for redistribution. The State could not provide compensation for the extensive land redistribution and also have the resources left to fulfil other welfare objectives.
This was the first of many policies pursued to fulfil the DPSP that violated the fundamental rights. Nehru described this tension as one between the socialist policies of the State, ‘which represent dynamic movement towards a certain objective’, and the fundamental rights, which ‘represent something static, to preserve certain rights’.19
State laws implementing land reforms were challenged in courts as unconstitutional. In Sir Kameshwar Singh v Province of Bihar,20 the Patna High Court struck down the Bihar Management of Estates and Tenures Act 1949 as unconstitutional for discriminating between rich and poor landowners’ compensation, violating the right to equality under Article 14.
While the State’s appeal in Kameshwar Singh was pending in the Supreme Court, the Constituent Assembly which, at the time, was the Provisional Parliament, passed the Constitution (First Amendment) Act 1951, shrinking the right to private property to enable positive transfers/​entitlements to specific groups of farmers, and giving effect to the DPSP under Article 39.
The First Amendment created a list of preferred legislation called the Ninth Schedule. Article 31B stated that laws listed in the Ninth Schedule could not become void on the ground that they violated any Fundamental Right. The government proposed to protect all land redistribution legislation by including it in the Ninth Schedule. In 1951, the First Amendment was challenged in the Supreme Court in Shankari Prasad Singh Deo v Union of India.21 The Court held that Parliament was empowered to amend the Constitution without any restrictions, as long as the procedure for amendment under Article 368 was followed.
The First Amendment amended strong substantive rules in two ways: (i) it created the Ninth Schedule and opened the gates to potentially unlimited exceptions to the fundamental rights, creating strong incentives for interest groups to seek favourable transfers; and (ii) it formally amended the language of the fundamental rights, weakening them in order to incorporate the DPSP. However, the problem of reconciling the DPSP with the fundamental rights was not resolved completely.
An important part of the balancing act between negative and positive rights was the compensation provided for infringement of property rights. If those whose property rights were taken were fully compensated, providing positive transfers to further egalitarianism became impossible. In State of West Bengal v Bela Banerjee,22 the Supreme Court held the West Bengal Land Development and Planning Act 1948 unconstitutional for violating principles
19  Parliamentary Debates, vol 12 (Lok Sabha Secretariat 1951) Part 2, col 8820–2​ 2. 20  AIR 1950 Pat 392.    21  AIR 1951 SC 458.    22  AIR 1954 SC 170.

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The Indian Constitution