Constitutional Law

The Economic Analysis of Law: In Conversation with Dr. Shruti Rajagopalan

Parv Tyagi

Dr. Shruti Rajagopalan is a senior research fellow at the Mercatus Center, George Mason University and a fellow at the Classical Liberal Institute, New York University School of Law. Before joining the Mercatus Center, she was an associate professor of economics at State University of New York, Purchase College. Her research interests include law and economics, public choice theory, and constitutional economics. In this interview, Parv Tyagi (Editor, Law School Policy Review) sat down with Dr. Rajagopalan to discuss the law and economics movement, how it brings together legal theory and economic reasoning, and how it can help explain constitutional decline in India. They also discussed India’s broken judicial appointment system and how to fix it. 

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(The following is an edited transcript of the discussion.)

Parv– Greetings to all our listeners. Today our guest is eminent constitutional economist, Dr Shruti Rajagopalan. Shruti is a senior research fellow at the Mercatus Center at George Mason University, and a fellow at the Classical Liberal Institute at the New York University School of Law. Before joining the Mercatus Center, she was an associate professor of economics at State University of New York, Purchase College. Her research interests include law and economics, public choice theory, and constitutional economics. I’m delighted that she could make time to be with us today. Welcome, Shruti!

Dr. Rajagopalan– Thank you so much for having me. This is a pleasure.

Parv– Shruti, there are multiple methodological approaches to legal analysis- law and philosophy, feminist legal theory, etc, etc. But one of your major areas of research is law and economics. Now to a layman, the two are seemingly different subjects with distinct assumptions and applications. At best, or at most, one can associate economic logic with commercial laws. But as we’ll discuss, most of your work has actually been to apply economic analysis to public law. And that’s quite interesting given, most of us think there’s no connection between the two. While we’ll discuss that in depth, can you tell us something about this separate standalone discipline called law and economics, how it operates and what drove you to it?

Dr. Rajagopalan– Actually, if I think about it, law and economics is really two separate branches. One branch is really trying to understand the influence of the legal system on the working of the economic system. So, there’s a certain set of institutional rules or an institutional framework and how does that affect the economy. So how does labor law affect labor markets or how do property rights affect externalities and allocation of resources and so on. So, it’s always within a given institutional framework, and there you can get more specific and talk about property law or labor law, or, as a big part of law and economics was, antitrust law. But the subject of analysis very much is the economy. And this is really associated with Ronald Coase, mainly starting with his work in 1959, the FCC Paper and in 1960, the Problem of Social Cost.

The second branch within law and economics is what we call the economic analysis of law. And this branch is also what we call the Posnerian branch of law and economics because Richard Posner, is known to be its modern-day founder. What the Posnerian branch really does is it uses economics as a method of inquiry. We take all the standard assumptions which are within the toolkit of economics- individuals are rational, self-interested and so on. And then you apply those assumptions to understand why a legal rule may exist or why a legal rule emerged in a particular way or why it works in a particular way. So, these are broadly, the two branches of the larger discipline of what we call law and economics.

Now, within this, you can have a further sub categorization. You can either have positive analysis or normative analysis. Now, incidentally, both Ronald Coase’s work, and Richard Posner’s work predominantly are in the positive analysis framework, but you can also have a normative element to both law and economics and economic analysis of law. So, for instance if you think about basic antitrust law or competition law. You see that perfect competition is used as the normative standard against which all other kinds of market competition are judged, whether it’s a duopoly or a monopoly or an oligopoly. And therefore, these market behaviors by these other kinds of competitive firms will be judged against the normative standard of perfect competition and therefore corrected. So, if you know the monopoly price is not the same as the perfectly competitive price, that’s what we need to correct, and it could be above or below. It could be predatory pricing which means, you’re below what is perfectly competitive market price, or you could be charging a monopoly markup.

Similarly, you talked about the various critiques that you could have like you have a feminist critique, a Marxist critique, you have all these different ways of critiquing law right, even within economics, you could have the normative part of law and economics, which is really critiquing or correcting particular laws using economic analysis. And this also, just like competition policy, starts overlapping in the area of more policy frameworks. So, this is something like you study rent control law, you understand the unintended consequences of rent control. And then you start critiquing rent control law from the point of view of the final goal which is increasing housing supply or something like that, against which the rent control law doesn’t quite hold up in the critique because you have a particular normative element or normative goal that you need to hit.

Parv– And what drove you to law and economics?

Dr. Rajagopalan– You know, I wish there was some very exciting story to it. I did my undergraduate in economics at Delhi University. I always wanted to be a lawyer, and all these five-year law schools were just starting to come up when I was finishing up high school. National Law School, where you are, was already pretty well established. But another very standard way of becoming a lawyer was to do a three-year degree and then to do an LLB, and I got into Hansraj college at Delhi University, which was known to have an excellent economics department, even in those days. So, those were the choices and I chose the latter. It’s hard to really explain why, except that if NUJS and NALSAR had been as well established in those days, as they are today, then probably they would have been very attractive. But at that time, we just didn’t know that much about these schools. On the other hand, the Hansraj economics program was just very prominent, well known. I had an exceptional set of teachers in the program. Most notably, Professor Anil Kokrady who taught me microeconomics, and his class was one of those magical things that once you understand the world from a particular way of thinking, which in this case was economic point of view, it was very difficult to unsee the world that way, and then once I really got into it, I just had a deep love for economics. I had an excellent public economics professor who taught me public economics and public finance called Professor Alka Kacker. So, we had a really nice environment. Delhi School of Economics was just a hop, skip away, and the Delhi School also had a fantastic canteen, so you’d be hanging around drinking tea and everyone who’s hanging around you is doing a master’s in economics and they’re all talking about economics. So, I came very much from a place where everyone was constantly talking about economics, and you just kind of learn by osmosis. I went on to the Faculty of Law at Delhi University immediately after. And very early in my Faculty of Law career. I figured out that law doesn’t have an analytical framework. It’s a very exciting area of study, but it doesn’t bring with it its own analytical framework, and I found the economics analytical framework extremely powerful. So, I started digging into who’s doing law and economics, what’s going on because I kept thinking about the problems as an economist. And at that time, Professor TCA Anant was teaching a law and economics graduate level course at Delhi School of Economics. And so, I asked him if I could audit the class and I sat in, and that was really my first formal introduction. Someone is telling me what to read, and who are the scholars in this discipline and how to go about it. And he and Jaivir Singh were doing some very interesting work at that time on environmental law, because all your MC Mehta v Union of India PILs were coming out at that time and the judiciary was taking a keen interest in environmental regulation. So, they were doing their own research on that and all this was very exciting. It was happening right outside our homes, and these guys were able to explain why you have long lines outside CNG stations and, what are the judges doing right versus wrong, so it was a great time. Simultaneously, you know, a few years before I had interned at the Center for Civil Society, which is where I got introduced to Hayek, who is, I mean he’s done many many things he’s done monetary theory, calculation debate, but the later part of his career was just a lot of law and economics, all your Law, Legislation and Liberty, the three volumes, the Constitution of Liberty. I think the Road to Serfdom has a lot of great institutional, economic analysis. So, I read those books and they were a big influence. Similarly at CCS I discovered James Buchanan and Gordon Tullock, the public choice school, which is different from the law and economics school and we can talk about that a little bit.

So, at the end of this, I think everything just nudged me in a particular direction. I found it exciting. And then, you know, each deeper dive into that area trapped me deeper and I never left.

Parv– Which brings me to a related question which is, that one can see early glimmerings of Law and Economics in the works of Adam Smith, David Ricardo, and later Hayek, as you rightly pointed out, but law and economics becomes a specialized discipline much later. So, how has its evolution taken place over the years?

Dr. Rajagopalan– That’s a great question. You know it’s difficult to say. So, one you’re right you can see a lot of the stuff we talk about in modern day Law and Economics, and not just Law and Economics but also modern-day behavioral economics can be traced back to Adam Smith. So, yes, Smith was just such a broad thinker and wrote about what he was seeing in society and social cooperation so broadly that you can see glimmers of this, going back. I would say the kind of Coasian analysis you see in Law and Economics, starts with Bentham and Mill. And, they are very, very clear precursors, because they’re directly talking about these subjects and they are thinking about it, so the utilitarian framework which is hugely borrowed in externality economics can be traced quite clearly to Bentham and Mill. There’s a great book on this actually written by Steven Medema. He’s a historian of thought and especially in the area of this kind of Coase and externality economics. His book, The Hesitant Hand is a great book to trace this kind of history. So, he’s talking about Bentham, Mill, Sedgwick, Pigou, up to the Coasian critique of Pigou. But typically, in an area like Law and Economics, it’s not like nobody could have done rent control analysis before the 60s and 70s. All that was going on. It’s not like no one did institutional analysis, it’s just that it wasn’t recognized as a separate discipline. So, if you read Peter Boettke’s Mainline Economics, you see that what Coase is doing- which is basically really good economics, which is we need to take the institutional framework into account, the rules of the game into account before we start studying, what kind of interactions and patterns emerge in the economy- has a very strong tradition, in what Peter Boettke calls mainline economics, going all the way back to Adam Smith. What is new is and the reason we trace the modern-day Law and Economics back to Coase is the FCC Paper, and the Problem of Social Cost. Together, these two papers, quite dramatically changed how economists were thinking about legal institutions. And I think that’s the reason, that everyone in modern day law and economics immediately can trace their journey back to this point just like the Industrial Organization right and that literature, everyone can trace that to Coase’s paper right it’s such a clean line.

I think it’s not like you can’t find glimmers of Posnerian economics, like if you look at Adam Smith, again, he’s talking about the emergence of common law, he’s talking about how you have these private institutions where judges are competing for cases, this is a time in England when judges are still competing for cases because they’re paid fees to look at each case and you have these independent reporters reporting these cases, you don’t have a highly centralized monolithic legal structure. And you can see glimmers of a very Posnerian analysis of how these things are emerging even in Adam Smith. But the modern-day style of people doing this analysis very much goes back to Richard Posner, Gary Becker. Those are the guys who really took off in this area of economics where they try and explain legal rules, from an economic point of view as if the emergence of these rules were rational, so, homo economicus is applied to everything- rational self-interested individuals, and how they behave and then the resulting patterns from it.

In the case of Ronald Coase. You know there’s some very exciting stuff happening in Chicago at that time. So, you have Aaron Director, Gary Becker, George Stigler, Milton Friedman. They’re all kind of this incredible cohort and Stigler really popularized Coase’s analysis, and adopted the Coase Theorem in his book, Coase never calls his result a theorem. And I think that, again really helped, because once you can put something in principle and intermediate economics books dub it as a theorem, it then immediately makes its way into classrooms and students very very quickly.

Parv– You’re absolutely right, actually. And I also think that one often associates Law and Economics with the Chicago School of Economics, right? This is in part because the law and economics method takes as its starting point the proposition that individuals are more self-interested than socially interested, but also because its most prominent scholars have been people like Coase and Posner and Becker, all prominent Chicago economists. So, would it be correct to necessarily equate the method of law and economics, with the political philosophy that most of its proponents profess?

Dr. Rajagopalan– Not really. You’re absolutely right that there’s a very strong association with Chicago. Both Coase and Posner are from Chicago, and there are a lot of people both in the economics department and the law school who were doing this work. So, you’re right in that. But I think Chicago is not new in saying that individuals are rational and self-interested. That is the foundational assumption of any economics. Right, so you could be in Timbuktu, you could be doing economics in the arctic circle, if there is a university that does it, you could be doing it in Chicago, you could be doing it anywhere. If you are a neoclassical economist, this is your first assumption- individuals are rational and self-interested. So, in that sense I don’t think the method that they were using is very Chicago. Actually, if you look at Ronald Coase’s work. He wrote the FCC paper when he was in Virginia. And there was this fantastic group in Virginia, so Buchanan is there, Tullock is there, Coase is there. And those guys are doing something quite fascinating which is trying to understand the market process in integration with the political process. And incidentally, Coase goes in a particular direction and he does it with the legal process so this is when Tullock is working very much on politics, Buchanan is doing politics, constitutions and public finance, so there’s something very magical happening. In fact, I would go as far as saying that a lot of the Coasian analysis is not even Chicago School. Chicago School picks it up and runs with it. But if you really start tracing the history of the Coasian analysis you would actually trace it to the Virginia political economy school even more closely. So, I don’t think it’s unique to that.

Your question, if the method can be delineated from the ideological underpinnings, I think so. You know, there’s a lot of Law and Economics that I read, which is ideologically quite neutral, or can even be left leaning. I think ideology comes in a lot in two ways. One is the choice of topic. So, a lot of Chicago School economists were working on competition policy and antitrust, so a lot of the early Law and Economics or economic analysis of law ended up being in that area. But you know, you have plenty of modern-day economists who are working on say criminal law and economics, which is quite clearly, I mean, ideologically neutral but if you have to label it, it would be quite left leaning, because they’re talking about the unintended consequences of certain laws and prison overcrowding or the kind of race profile that you get when these kinds of laws are implemented and and so on. So, I don’t think the method necessarily comes with a particular ideological leaning. I think ideological leaning plays a role in the topic that is chosen. And again, now the second caveat is if you’re doing normative law and economics, then of course your ideological underpinnings are going to come in in a much more pronounced way, in a way that it doesn’t come in in positive analysis. And you know now thankfully you have law and economics, being done in virtually, every, economics department, in the United States certainly and most of the world. And the same for most law departments, even, in India now. When I was growing up, when I was in college, or even in law school, I would say law and economics and people would just look at me like I was a strange person. Now I think virtually every law school in India has at least a small module in law and economics. Everyone’s introduced to the basics, the big Richard Posner book Economic Analysis of Law. Everyone’s kind of a little bit clued into those things. So, I think things are certainly changing in that regard, I don’t think this is just a Chicago school thing anymore.

Parv– Unlike India, law and economics has been and continues to be very popular and robust in the American legal tradition. And there are scholars who have extended economic analysis to family law, matters of marriage, divorce and adoption etc., areas one could not imagine economic analysis belongs. But a standard intuitive response to that has been that there are certain spheres of action where economic considerations do not enter. Though my own sense is that in most cases it does, of course, not in all cases, but with sufficient frequency for the larger analytical model to hold. But how do you respond to this criticism, that these assumptions may not hold true in certain spheres of human action and therefore, in certain spheres of law?

Dr. Rajagopalan– This is a really good question, and also goes back to the split I’m talking about, the Coasian versus the Posnerian study, or in this sense, even Coasian versus Beckerian. So, within Chicago- and I would say in the late 50s and 60s and some of this also had to do with the founding of the public choice movement- there was a venturing out of economics: using the economics toolkit to study non market behavior. So, until then, you were only using economics to study market behavior and that’s very Coasian. You look at the economy, using the scaffolding of the law as the starting point or given particular institutional rules or legal rules, but taking the economics toolkit, outside of market behavior. The two areas which come to mind immediately- one is law and economics and the other is public choice, which is economic analysis of politics. Here, what is really going on is one is not saying so much that these areas are the same as the economy. No one is saying that the family is the same as the economy, no one is saying the law is the same as the economy or constitutional rules are the same as the economy. The claim is one of behavioral symmetry. Okay, that the people, the individuals in question are the same. So, whether you’re an individual buying apples and oranges, or whether you’re an individual who is wearing the robes of a judge and pronouncing decisions in the courtroom, or whether you’re an individual who’s in the public domain as a bureaucrat or politician or as a voter, we can as analysts treat you the same. And what does that mean? It means that you are self-interested, you’re rational and what does that really mean? It means you account for costs and benefits when you’re making these decisions, and you’re self-interested in the sense that in an exchange, you would want to do better for yourself than for the other party. This is not to say you’re selfish or that you’re greedy. Those are very normatively loaded terms. This is just a fundamental assumption that we make about human behavior. Right, so the claim that Gary Becker is making when he takes economic analysis into the family or, you know Ludwig von Mises making this claim before Gary Becker in Human Action, or the claim that, you know Buchanan and Tullock are making when they take the analysis into politics is not that all human beings are these greedy, awful, isolated, selfish people. But still that the unit of analysis is the individual, it’s not the institution. So, there’s methodological individualism, which is another foundational part of the toolkit of economics, which is now being taken to non-market behavior. And the second is behavioral symmetry – that is we’re going to treat all individuals the same whether they are bureaucrats or politicians or whatever. I think that is the incredible innovation that was made. And to that extent I’m fully on board. I do think human beings are the same everywhere. I don’t think that just because you’re wearing the robes of a judge, you are suddenly able to transcend the fundamental characteristics of your humanness. Basically, what they’re saying is, incentives matter and human beings respond to incentives. So, then the question becomes what are the incentives of a judge. So, depending on the institutional context, some of the incentives of a judge are – “I don’t want my judgments to be overturned in an appeal”, or “I want to make sure I get promoted”, or if you’re in a system that elects its judges versus appointing judges you want to get re-elected or if you’re in the Indian scenario you want to make sure you get a post- retirement appointment right. What are your incentives. I mean, saying the judges are not human, for one is just plain wrong. But I think it also makes it difficult to analyse them in any sensible way.

Others who have studied the non-market context are the Bloomington school: this is Elinor Ostrom and Vincent Ostrom. They were also political scientists, but they were looking at different kinds of questions and non-market behavior, which is how do you govern the Commons, which are not exactly within your standard market system and market analysis. You have of course the public choice guys [Buchanan, Tullock, Riker], people like Henry Manne or Aaron Director who are trying to set up these law and economics programs, they were like entrepreneurs in propelling the law and economics movement, you have Gary Becker who’s doing this for criminal behavior and family law and things like that. And, of course you have Richard Posner, who’s doing it for economic analysis of law and if you notice they’re all working in similar decades. Many people have called this economic imperialism, which is that economics tries to study everything, not just the economy but everything in addition to the economy. So, there is some truth to that and the Chicago school is very much associated with this kind of economic imperialism. But I think it’s not just that, I think it’s a way of thinking about the world and how you think about human beings and fundamental assumptions.

Parv– Shruti, you mentioned about the venturing out of economics to non-market spheres. Now, law and economics has a pretty robust application in Public Law, largely through the area called public choice and public choice theory, which is also your area of research. Can you tell us a little bit about the public choice theory?

Dr. Rajagopalan– Yes, this a great segue from what we were just discussing so there’s this movement to start applying the economics toolkit to non-market behavior. And that really begins with James Buchanan and Gordon Tullock, there’s some parallel movements going on, there’s the Rochester School where you have William Riker and those guys writing. So, the first set of models are really on voting behavior. So how do people vote, and what kind of patterns emerge, based on how individuals vote, when they’re self-interested.

Some background is useful here. Until that time, everyone thought that people are self-interested when operating within the marketplace or all your models of competitive behavior, people buying, price competition, monopolistic behavior. All this is based on the toolkit that individuals are rational and self-interested, but the assumption, especially in the area of Political Science, was that the moment these people go into government they are public spirited. So, the same person when they go to the marketplace, they’re going to be haggling with their local grocer, they’re gonna make sure they get the best bang for their buck and the most apples and have the highest quality and the lowest price. But when they go to the voting booth, they’re suddenly thinking about the world and world peace, and their neighbors and all those sorts of things. Similarly, when politicians get elected, or bureaucrats get elected, the same politician, when he’s out and about, and he’s filling his car with gas or something he is self-interested. But the moment he walks into the building and sits in his office whether it’s North block, South block, Udyog Bhawan, he is public spirited. So, this used to be the way political science treated individual behavior, if at all it was treated in any analytical way. I think the big innovation of public choice was to say hey, this is unrealistic, which is why Buchanan often dubs public choice as “politics without romance”. And it’s not because we think all politics is bad or broken, it’s simply that you are taking away that romance that people are automatically assumed to be publicly spirited. The moment they take office they are still going to be human, which means they are self-interested. So that was the point of view. So, the initial models on this are very much about voting, about how it is rational for individuals to vote, is it rational for individuals to learn much about voting. So, this whole idea that voting is irrational because the costs outweigh the benefits. The benefit in this case is an individual voter’s chance of changing the outcome, which in a large electoral process is so small, but the amount of effort they need to put in to make sure that they study and look at all the candidates and they understand what’s going on in their polity, the informational demands are so high that it is rational for every voter to be ignorant, and it is also rational for voters in fact just not to bother to vote. So, your early models were about voting behavior and the emergent patterns- Median Voter Theorem, or William Riker’s Minimum Winning Coalition. In this area the very interesting point of view that James Buchanan brings is through the Calculus of Consent. Before Calculus of Consent came out, Buchanan was a public finance economist, he was looking at taxation and how we decide fiscal outlays politically and as a society. And now in budgetary politics, you are going to get a lot of this public choice behaviour. There are multiple layers to it- how we tax, who we tax, how we spend. There’s also an intergenerational aspect, which is that it’s easier for politicians to tax people who are not yet born, who’ll bear tax well into the future, and pass on all the benefits of subsidies and welfare entitlements today so a lot of this early work was by James Buchanan, and Richard Wagner, all these guys were writing about Ricardian Equivalence. There’s a great book by them called Democracy in Deficit which is really a response to John Maynard Keynes and his arguments on fiscal policy tools at one’s disposal. So, a lot of the early work is on public finance and public finance really nudges Buchanan in the area of, and he eventually coined the term, “constitutional political economy.” But he started thinking about what kind of constraints are required on political actors to make sure that you don’t get perverse outcomes when you have rational self-interested people in political office. So that’s the normative part of constitutional economics or constitutional political economy.

The positive part of constitutional economics is, what are the rules of the game, and how the rules of the game came about. Right, so this is really what we’re looking at. So, there’s a big literature in political science and in constitutional law on what is that constitutional founding moment. Right, so everyone who looks at comparative constitutions, say, Bruce Ackerman and so on, are looking at the founding moment. They’re trying to understand how the rules of the game came about. And a lot of that emphasis is on history, it is on context, it is on: is this a revolution, those kinds of themes and discussions, and what Buchanan and Tullock really bring to the table in the Calculus of Consent is quite extraordinary. They use the same tools of rational choice, except now the individuals who are in the group are trying to rationally choose constitutional rules. So, what are the rules of the game? How would rational individuals choose the rules of the game? So that I think is incredible. You know, I wouldn’t even call it an innovation, it’s almost like a leap, like no one is really doing that. Vincent Ostrom at the same time is talking about the Compound Republic. In some sense, you have him looking at the Tocqueville project, you have Buchanan, looking at the Humean-Lockean project. So, it’s really about how we constrain the people who govern us in a society that believes in self-governance. That’s kind of a big project, but the sub part of that big project is how our constitutional rules come about.

So constitutional economics is really how we think about the rules of the game, how they come about and public choice theory is political strategies, or behavior within a given set of rules, right. So, if the rules of the game are my voting rules ‘x’, what kinds of strategies are people going to form within that to make sure that they get the result that they want within a particular kind of polity. And that’s public choice theory. So that’s really the difference between the two right. It’s a question of level; it’s the rules of the game versus strategy within the rules of the game.

My work in this was trying to look at the interaction between these two levels because constitutional amendments kind of cut through this. I was very interested in how self-interested individuals navigate changing constitutions, why do they wish to change the rules in the first place, why is it not working, are the rules flawed or is it some other reason. And then how do you change the rules of the game, using the rules of the game, right because the Constitution is the only document which also provides the rules to change its rules. That’s not true for any other piece of law. So that’s the difference between a constitutional document and every other document. I was also interested in that because the Indian Constitution by the time I started working on this had about 93 amendments. Right now, we’ve had 105 amendments.

Parv– Well, that’s very useful and in fact, brings me to the next question, which is that you have looked at amendments to the Indian Constitution both through the lens of constitutional economics and public choice. And one of your major arguments has been that the reason for constitutional decline in India, was that the formal institutions of central planning that our early governments sought to put in place were fundamentally incompatible with the Constitution. And it is this incompatibility, which led to frequent amendments to the Constitution. Can you tell us something more about that?

Dr. Rajagopalan– Absolutely. So, this is some of my older dissertation work. You are actually taking me back a long way. So, there are two ways to think about the amendments. Now, I was trying to understand why is it that we amend the constitution so frequently. Is there a design problem? Now, if you’re an economist, a very simple way of thinking – why does India have so many constitutional amendments versus some other country like say the United States – is to look at the constraints. It’s much easier to amend the Indian Constitution than it is to amend the American Constitution. Under article 368 of the Indian constitution, the rule is you need a majority of the total membership of the house, or a majority of not less than two thirds present and voting plus of course the President’s assent. Then you have some entrenched clauses, for which you need half the states in India to ratify. Now if you look at the US Constitution, it’s not just the majority of the total membership of the house, it’s two thirds membership of the house, so you already need a much bigger majority in the US. Plus, you need three quarters of the states to ratify, which is really the crunch. The US has had only about 27 amendments. So, the simplest way of thinking about this is, why do we have so many amendments in India, well it’s easy to amend the Constitution. Right. That’s the procedural point of view, simple cost-benefit.

Now, that still doesn’t tell us anything about what was the impetus for each of those amendments. Right, it tells us that, given that someone wants to amend the Constitution, it’s much easier to do so in India than in many other polities. But what was it that they wish to amend, why is it they wish to amend it? That is not clear from this basic econ 101 analysis. And that’s what I started digging into. So, when I was in law school. I had no reason to believe that socialism was the reason for constitutional amendments. This was not something that was taught to us, this is not something which is in our amendments jurisprudence or, constitutional law jurisprudence. I came upon this simply by studying the content of the amendments. So, we see a very clear pattern in say the first three decades of Indian constitutional amendments. You have the government trying to do something like a major policy. It passes legislation to implement that policy, that legislation gets challenged, the courts strike it down. Now, when the courts strike it down as unconstitutional, instead of saying “hey, this legislation is unconstitutional, we need to reformulate the legislation,” they say “oh we need to reformulate the Constitution.” If you think about this, this is extremely bizarre. Now, there are many ways in which this has been described in Indian jurisprudence. Oh, you needed socially motivated laws or you needed public interest laws. So, land reform was for the landless masses of India, versus some Zamindars etc. I mean there’s always some very specific reason which is given, but there was no analytical framework. When I started, I kind of had a big notebook. I started looking at each Amendment Act. And I said, okay what are they amending, then I traced it back and went to oh, they amended this because of this case. Okay, why was this case fought, oh this case was fought because of this law so now why was this law enacted. So, I kind of did this forward and backward kind of linkage.

And what I found was that in at least 14 of the first 44 constitutional amendments, and there are more but I’m talking about 14 where I could find a very direct link. You have statements and policies very clearly mentioned in the planning commission’s five-year plan document that we’re going to have Zamindari abolished or something like that and once the plan is formulated, either the central government will enact the law or it will, as land is a state subject, tell the states to enact the law. So, the states start enacting these laws, these laws get stuck in the courts, the courts strike them down, send them back. The parliament, instead of abandoning the policy, amends the Constitution, and then you have the next round of this. It just keeps happening. And I found that extraordinary. And the reason I was able to see the pattern is, I don’t think too many people had studied the first 44 amendments during socialism in a clean-cut way. The usual mythology was, Nehru was a great constitutionalist and Indira Gandhi is when the world went to hell in a handbasket. And once you start looking at the amendments, you’re like, Indira Gandhi amended the Constitution more frequently and for more malevolent and self-interested reasons, very directly self-serving reasons, but the content and argument, which is forwarded for these amendments, is not that different from the previous decade. So, Indira Gandhi is also adding very socialist legislation to the ninth schedule, same as Nehru. I think, because I was looking at the pattern of all the amendments together, I was able to spot that this was the problem. And every time the argument was, you know that this needs to be for the greater good and the public interest and you know to further the socialist goals of society and so on and so forth. It was always typically about a positive welfare entitlement of some sort. I think it’s helpful to look at amendments, by looking at patterns, instead of looking at individuals. A particular framework of governance, which is causing this systemic contradiction, as opposed to some individuals are good and some individuals are bad. No matter which individual you put in that chair, as long as you’re trying to implement these policies, this is the bad outcome you’re going to get, which is frequent constitutional amendments, that’s what I was trying to show through, that paper of my dissertation. This is the one published in Constitutional Political Economy. And I think that’s a useful way to think about amendments. I think in India we pay too much attention to individuals, whether it’s prime ministers or judges or whatever. And we pay too little attention to the larger arc of pattern of what’s going on, and you know the big benefit of being an economist is that we are trained in looking at patterns right to very basic sense, so that came about.

The second part, coming to the ideological part of the question. The Indian framers were the root cause of this constitutional design flaw. And this is because they were very largely inspired by the Fabian system.

Hayek pointed this out in the Road to Serfdom, that you can either get socialism, which is control over the means of production and prices, or you can get the rule of law, which is generality, equality before the law, and no arbitrariness. You can’t get both.

Now, there is a positive way of looking at this as opposed to normative. The positive way of looking at this is, if you really want to implement socialism, you need to throw this constitution out, which is by the way what the Communists were saying for a long time, the Communists didn’t want constitutional constraints because they knew that this is a really big problem in trying to implement the kind of huge social rehaul that they wanted. So, Hayek from a positive point of view is just simply saying that these two institutions are not compatible. You can either get ‘A’ or you can get ‘B’, you need to choose. If you try to implement both, you are not going to get one or the other, because when push comes to shove, you have to choose. And that’s exactly what you see happening in India at each point when each single law, whether it’s the Bihar land reform, whether it is FERA or whether it is Bank Nationalization, each one of these things when challenged, you see the moment when the courts say hey, you need to choose the policy or you need to choose the Constitution. At each point they chose the policy over the Constitution because they go forward and they amend or they dump it in the Ninth Schedule. So, in that sense, it’s a very Hayekian project. So that’s the positive way to look at it.

The normative way to look at this, especially now that we are in the post-Soviet Union collapse world, which is not the world that the framers inherited, but I have the benefit of hindsight, unlike the framers of the Constitution. Now I can put a normative lens on this and say hey socialism did not work. Not only did it cause all the problems in the economy, all your shortages and impoverishment and so on. It also destroyed the Constitution. So, the paper does both. But you could also just simply look at this from a very positive lens and see, these are two incompatible documents, and there is an enormous amount of evidence to prove that I only look at specific constitutional amendments, but you can look at so much legislation, right, which is kind of contrary to the rule of law, but it passes the constitutional test, because there is a huge amount of public interest, public purpose deference to the legislature, that the judges show. If something is in public interest and the parliament says it’s in public interest the courts believe it’s in public interest. There’s so much stuff like that which actually does pass through, as constitutional, but which would still be against the Hayekian and Diceyian idea of the rule of law.

Another sub part of that work was just looking at the Ninth Schedule. I mean, this is one of those marvels or, an abomination of constitutionalism. And the Ninth Schedule very much comes about because you want to have the land reform, you want to abolish zamindari. That is the origin of the ninth schedule, but there’s a very clean public choice analysis that can follow from the moment you create the ninth schedule. And what I was trying to do in that paper– it has been long pending actually it’s been accepted in the Journal of Legal Studies. Given the existence of the ninth schedule, it should have just exploded and expanded, which kind of happens in the beginning, but at some point, additions to the ninth schedule kind of start slowing down. And, after 1995 they just stop. There are no new additions to the ninth schedule. So that was kind of a puzzle I was trying to resolve. Why was this constitutional dustbin so heavily used initially and what incentives changed that people stopped using this later? So, this is a very classic public choice rent seeking analysis. I’m looking at political entrepreneurs who have something to gain from amending the Constitution. And so, there’s a benefit to amending the Constitution, but clearly the costs keep changing. And as we go along further, the procedural costs start mounting. You have the basic structure doctrine which says, even if something is added to the ninth schedule, it can be reopened later. So now you also have to go to courts. So, we’ve in a sense, added additional constraints or additional hurdles, which an economist would call cost or expected cost, and that’s the reason, its use (ninth schedule) starts declining, 

Another part which came out of this was we talked about amendments to the Constitution, but only the formal amendments. The Indian Constitution is being amended, every day, every hour by the judiciary, and that has, in fact, become the main way of amending the constitution now. So, I was trying to look at how in the initial years, a lot of the amendments were formal amendments to the text of the Constitution. And then as we go along further especially in this post Kesavananda Bharati and post-PIL moment, when they started diluting locus standi requirements, the procedural costs of approaching the bench lower, which means now it is a little bit more attractive for rent seekers and political entrepreneurs to approach the judiciary, because it’s low cost and approaching the judiciary (as opposed to the legislature) gets you the same thing: you get the rule changed. And the background or the consequence of this is the rise of the judiciary as this power structure which has been talked about a lot, I wanted to talk more about what are the mechanics that are pushing this you know you can say that the judges are getting stronger and more important, and all that stuff, but you still need petitioners to show up in the courts with all this stuff right, so that’s the point of view I was trying to understand who are these people, why are they approaching the bench to do these things. So really looking at constitutional amendments by interpretation, the rise of the PIL movement, the increase in positive entitlements being handed out by the court, as opposed to by the legislature and so on and so forth.

Parv– There was an important point you touched upon that, in our political discourse, the understanding has always been that the Constitution is some sort of a guiding document, and not a sacrosanct charter of liberties that should rarely be touched. And when you contrast this kind of understanding with the understanding that the framers of the United States Constitution had, it’s strikingly different. Do you think it’s because the Indian Constitution was very much a product of its times. The American Constitution was written in the shadow of Locke’s Two Treatises, but the Indian Constitution, on the other hand, came about in the historical backdrop of Keynes’s General Theory and the dominant Fabian understanding at that time, that the societies and markets could be remodelled by active government intervention.

Dr. Rajagopalan– You know, this is a great question. Of course, every Constitution is a product of the time that it is formulated in. There’s no question about that. Some of it is the ideas that are the dominant ideas. You’re right, the American Constitution was written, in the heyday of the Scottish Enlightenment and a lot of the Enlightenment ideas you know found their way into the American constitutional project. The Indian Constitution was written very much in the shadow of Harold Laski and other Fabian economists and, of course, the progressive movement in the United States following John Maynard Keynes. So, one part is ideas. I think the other part is just the individuals themselves. The American Constitution is written by a very small and limited group of white men who are property owning and militarized in large parts and slave owning in large parts. Now this is important. The Indian Constitution on the other hand, is written by a very diverse set of people. I still don’t think it has as much diversity and representation. They were voted in 1946 through the Provincial Legislative Assembly elections, which were fought on a limited franchise; only those who paid taxes and owned property could vote. But even with that, it was a much broader and more diverse set of people than the American constitution, so that’s something to keep in mind.

The second is that, I think, at the birth of the Indian Republic, there is a political project which is going on, which is the constitutional framing. But simultaneously, there is also a social project which is going on, you want emancipation of women, liberation of Dalits, you want rights being recognized for Adivasis and so on, you want different groups of people to co-exist. So, when India becomes a republic, you have a union, which is being stitched together of British India and 560 plus erstwhile princely states. That’s one kind of political fractionalization which needs to be pulled together. You have a high degree of religious fractionalization, you have a high degree of caste fractionalization, you have a high degree of linguistic fractionalization. Any one of these things is enough to fracture, and make the union collapse. In the United States, you don’t have this kind of religious fractionalization and there is no question of caste fractionalization, and even the class system, which they do have at the time, people in other classes are not allowed to partake in the politics, or the constitutional moment. You certainly don’t have linguistic fractionalization and when it comes to the Adivasis, the obvious parallel is the Native Americans who have been completely, in one sense massacred, not just quite literally but also politically, they’ve been completely sidelined. So, I do not think they’re comparable in the nature of the political or the social project. We keep comparing them, because the American Constitution is like this kind of drafting template. Every constitution in the world wants to borrow the Bill of Rights and wants to borrow some of the procedural elements, what are the majority rules or your amendment rules. The American Constitution is very templatized in that sense. So as a template yes, they’re comparable, but on every other margin if we really start digging into the founding moment there is just no comparison. They’re completely different projects. Now, when you think about the political project, you want to constrain people in power. When you think about the social project you want to enable the people who are in power to make sure that the social project goes through smoothly. That I think is the fundamental contradiction in the Indian constitution. That is why sometimes the Indian Constitution is a roadmap. And sometimes the Indian Constitution is a constraint.

If you look at articles 100, 189, 368, these are procedural provisions. They are very much constraining behavior, they’re telling us how you can formulate legislation or formulate constitutional amendments. On the other hand, you have all your Directive Principles. Every single fundamental right has a non-obstante clause equivalent. The moment you have the fundamental right you have the conditions under which it won’t hold. So that’s the real inherent contradiction. Also, there’s a lot of compromise. There’s a lot of compromise even in the American Constitution. But the compromises in the Indian Constitution are quite clear like, why do you need Directive Principles to be in the Constitution when they are unenforceable. I mean it’s such a bizarre thing, you can understand having a preamble to the Constitution, that is not enforceable but has value as a guiding document or vision statement. Why do you need 20 provisions in Directive Principles, which the framers say are not enforceable but still want the state to do? It’s a very bizarre thing to have. We have borrowed this from the Irish- so a very Fabian way of doing things. The idea is that if it is in the Constitution, then the fundamental rights will be interpreted differently. They will accommodate all these other things that we wish to do, because they knew these contradictions were inherent. But there are some very strange things that have come about, as a product. You have so many Fabians in the room, you can’t not have positive entitlements. Positive entitlements cannot be made enforceable. So now what do you do? So I think you’re right, in that it’s sometimes a roadmap and sometimes a constraint. And it’s because of the historical moment and ideas but also because of the people and the cultural context. In today’s cultural context, you might get a slightly different document.

The Indian Constitution is also the only one which gives universal adult franchise, the moment it launches. That is an extraordinary thing for any constitution to have at that time. I don’t think until then any Constitution had done that. And there are some serious logistical problems with this. Most Indians are illiterate, like you literally have this question of what are we going to put on the voting document words, letters, symbols, how are people going to sign. How do we do this logistically is a whole story. But also, more fundamentally most people thought this was the worst idea in the world because, how can people who are illiterate be allowed to vote? Shouldn’t you have a test? should you have some minimum requirements but that would also exclude most of the Indian population at that time.

So that is another major difference, because your constitutional politics the moment your Republic comes into being, is very different from the constitutional politics in the United States and other places where, you have a good 100 years before you extend franchise to people beyond, and a good 200 years, before you get universal at a franchise or anything that comes close to it.

Parv– I completely agree that there were important cultural and social differences between the backdrops, in which both these constitutions came about. But, and this is on a side note, I think there’s always been a problem in the political discourse in India, of lack of ideological diversity. So, all our constitution makers were, by and large statists, whether on the left, or on the right, and you see that ideological diversity still lacking in the way that our courts interpret the constitution. So, say, article 21. Now, they have given article 21 very creative interpretations, but all these interpretations are broadly, of a particular kind. So the courts have held the right to health as a facet of right to life, the right to clean air as a facet of right to life, and so on, so forth: all positive rights, casting positive duties on the state. There is no alternative imagination.

Dr. Rajagopalan– On the question of ideological diversity, the US Constitution is not exactly being written by an ideologically diverse group of people. It is a very homogenous group. They have differences: you have the Federalists and the anti-Federalists. But ideologically if we look at it from today’s lens, they’re all very similar right and that’s the critical theory interpretation of the US Constitution and it’s a critique of the US Constitution that it was written by this homogenous group of white men. I don’t think ideological homogeneity in itself is a problem. I think there are two other things going on. One is, you have an ideological position or an ideological commitment, which is not compatible with the written text of the Constitution. I think that is one problem, you’ve borrowed all these great liberal ideas and constraints from other polities, in your Constitution. But you don’t really have a commitment, simply to those ideas which you put in the text you have a commitment to a much broader set of ideas; and when push comes to shove, you’re willing to compromise what’s in the text. And that’s kind of my incompatible institutions thesis, you have this liberal document and you have, socialist institutions.

I think what’s happening with article 21 is not just a question of ideology. I think the judges don’t know what the hell they’re doing. If there was some ideological consistency there, I would be thrilled with it. So, the way I analysed the first 44 amendments, you have this great ideological consistency in the kinds of policies that run afoul with the Constitution and then you have to push it or amend the Constitution. I simply don’t see what is the ideological consistency between my right to architectural heritage, my right to clean air, and my right to due process. I don’t know any ideological position, which draws a clean line. The only ideological position is- this sounds like a good thing to have, and the judges literally write law based on this. I don’t want to put any greater intellectual veneer on this. The whole enterprise is just a sham. And it has been so for 20 plus years. It is easier for me to claim my right to architectural heritage under Article 21 and shut down commercial establishments in Hauz Khas village or Shahpur Jat, than it is to claim my right to a speedy trial. This is not an ideological problem, this is – “you don’t know what your job is as a judge.” There is no guiding principle, which unifies this kind of public interest litigation. Most of the article 21 jurisprudence is not even reasoned judgments. They are four paragraph orders: clear this slum, stop that restaurant from operating, open up this architectural monument, close down that factory because clean air, or make sure that the government hospital gives you free medical services. The whole thing is bananas. I would really encourage young scholars to find some unifying theme in all this. If they could, I would be very grateful. I have not found it personally. Also, this is a question for you as a law student. What do you think is the prevailing dominant ideology in the Supreme Court today? Is there one?

Parv– Well, as of today, maybe none. But even more generally, now that I think, perhaps, the only common theme running across these kinds of judgments, is that judges really don’t know where to stop. And I think Indian judges have a fundamental lack of clarity about their role in a constitutional polity. And they have been, particularly, post-1980, unable to figure that out.

Dr. Rajagopalan– I agree with you completely. But it’s not like they are more on the right in the traditional sense, that they are more market friendly. I mean, the kinds of judgments on retroactive taxation or cancelling of licenses. These are not right-wing positions, they’re just arbitrary and foolish decisions and they have terrible consequences. They are not very left wing either. Not the way you used to have Krishna Iyer who was very specifically expanding labor rights. You could very clearly see that he was expanding positive entitlements. You don’t see that today, so they’re not very left friendly either. They are certainly not liberal, in the classical liberal sense of the word, because you can’t get a habeas corpus hearing today. The whole thing is crazy. One of my colleagues and co-authors Shreyas Narla and I are tracking the Habeas corpus petitions, which are pending in Jammu and Kashmir since the article 370 situation. No one is showing any kind of haste in listening to these petitions, so not really liberal, either in the sense that individual rights need to be protected from a coercive state. I see no pattern.

The other reason I see no pattern is no judge is hanging around in the Supreme Court long enough to form a pattern. I mean their tenure is so short and fleeting. The way you would think about the Bhagwati Court or the Sastri court or something like that, you just don’t have that anymore. You don’t have them there for long enough time, so I don’t think it’s ideological. I think there are few things, and you’re absolutely right. I hope you’re allowed to say this, given that you’re a law student and one day you need to do judicial clerkships and you’re going to have judges come and lecture you. But you’re absolutely right in that they’ve lost all sense of purpose, they don’t know what they’re doing, they don’t know what their role is in a constitutional polity. I think it’s bad incentives. There’s a lot of ad hoc decision making because you know you have your post-retirement benefits and things like that which suddenly start looking like they’re favouring the government. So right now, it’s a right-wing Nationalist government so they seem right wing, when it used to be a left-wing government, they were left wing, whatever it is. And I think the judicial appointments process has completely corrupted the court. There is no sensible way by which we are appointing, it’s a completely corrupt and nepotistic system – there’s no other way to say it. We all like to complain about how all our politics is corrupt. But are we really expecting a bunch of judges who have risen to the top, through a very corrupted, nepotistic and opaque system to now shed transparency and accountability on electoral bonds? Really? This is what we’re expecting, and then we are constantly complaining that these judges are not holding those in power accountable to a democratic polity. It’s simply not going to happen, I mean look at how they were chosen. They were chosen by the same broken corrupt process, which is trying to increase the opacity in political decision making that the electoral bonds are doing, expecting one to fix the other is a pipe dream. So, those are the problems and I think they’re all structural. I don’t think they’re ideological and some of these structural problems always persisted, except in the very early part of the Republic.

But I wish they had an ideology, to be honest, because then one could analyze it. One could counter it. One could go to court and present evidence, saying that hey, this is your ideological vision, but these policies don’t exactly translate that vision. So, if you have a progressive policy like rent control, then you can take evidence and present it before the court and say this is the progressive policy that you’re peddling. But what you’re getting is not the intended outcome. You have all these unintended consequences and I think you need to relook at the gap between your ideological vision and the kind of policies that you’re upholding. I wish we had an ideological schema to these things. I just don’t see it.

Parv- I have a related question in this regard. Do you have any suggestions as to how this vicious cycle of institutional breakdown can somehow end because it’s quite clear that it’s stemming from a bad constitutional design?

Dr. Rajagopalan– I think article 124, provisions which are talking about appointments to the judiciary, can be specifically amended and clarified. The NJAC was an attempt to do that. It was a bad attempt, because it was flawed, though that’s not why it was struck down. It was struck down because the judges wanted to kind of hold on to their power and their very opaque system.

But we need something like the NJAC, not exactly what was put forth, but you do need a broader Committee, which is more diverse and more transparent, to appoint judges in India. There is no question about it. So, the idea that the Indian judiciary should be self-appointing. And as opaque in its self-appointing processes, is a recipe for disaster, and we’re already paying the price. Now, the question we must ask ourselves is, what is a stable coalition or committee, which is going to give us good quality judges. Is it going to be a committee which is full of ex judges, I don’t think that’s a good idea. Is it a committee which is full of politicians currently in power from the government, no I don’t think that’s a good idea because they are also the biggest litigants in court with the most skin in the game. That’s a terrible idea. Should it be members of the opposition alone? No, because you’re going to hold things up. Should it be some kind of group, which cuts across all these different people? Probably. So, it should be people who are members from the Lok Sabha, from opposition, a couple of eminent members from Rajya Sabha. You should certainly have the Law Minister or someone from cabinet to represent because they should be the ones making the appointments, or at least have a hand in making the appointments, though not complete control. You need some current and some former judges. So, I think what we need to come up with is a new NJAC which comes up with a stable coalition that is going to give us high quality people. I think that’s what’s required. I don’t think it is a tall ask that you can get a couple of high-minded people from opposition. People are going to say, if you have too many people from government and opposition and judges, they all work with each other. That’s not a bad thing. That’s exactly how we should be doing politics in this country. People should bring their separate interests to the table and find a way by which you can balance those interests. Why do we need people from the opposition? Because one day they might form the government, and then you won’t get this electoral bond kind of nonsense, because electoral bonds hugely compromise opposition interests, in favor of ruling party interest. So, you need people from all these diverse groups. Diversity is not just diversity of identity. It’s not just one woman, one Dalit, one Adivasi, one minority religion. That’s identity politics, you fall in the same trap. Yes, you need some kind of diverse identification, but you also need diversity of interests. Some people are gonna think very short term, typically your government appointees to this kind of committee, some people who think long term like your opposition, some people who think very, very long term like, maybe retired judges. Some wildcards, your Eminent persons, they’re always a wildcard some of them are going to be good, some of them are going to be bad. So, I think we need a better coalition, basically, we need a better way to do this. So, no question that we need judicial reform. It’s just who does it. The previous NJAC was almost too easy to strike down because it was too heavy on executive power. So, I think that needs to be accommodated. But saying that there’ll be no executive role in judicial appointments is bananas. They are the democratically elected government of the day. If they are not supposed to be appointing judges, then who is? Yes you need someone who is not part of the same democratic politics cycle because you need checks and balances against elected democratic representatives, but you cannot also completely cut them out. So, I think that’s the balance that needs to be found in the next reform. We are appointing judges by memoranda, which were hatched in a backroom compromise. Nobody knows where these rules came from, how they came about, why they exist, who we are choosing, there’s zero transparency, I mean the whole thing is appalling. It’s kind of shocking that this is the state of affairs. It’s basically a judicial coup. If they did the same thing in Parliament, we would call it a coup, we would call it an emergency or something, now we are having the same thing in the judiciary, we’re calling it judicial appointment by Collegium and there’s some nice euphemism for it but the judiciary has had a coup. And we can’t oust it, and that’s basically what’s happened.

[See- Shruti Rajagopalan, Positive and Normative Perspectives on Independence in Judicial Appointments, NIPFP 2016]

Parv– I think I’ve taken a lot of your time. So, this is my last question for you. One of your areas of research or one of your interests has been to look at how far constitutions drift from their point of origin. So, Richard Epstein, makes the point that the American Constitution was a classical liberal constitution, and judicial interpretation by progressives and conservatives, alike, have made it into something that it was not originally envisaged. How far do you think the Indian Constitution has drifted from its point of origin?

Dr. Rajagopalan– Very far, very, very far. Let’s walk through some examples. Something that’s not discussed that often is your 52nd amendment, the anti-defection laws. This has completely subverted the parliamentary process in India, what they’re basically saying is that now parliamentarians need not vote their conscience, they need to vote their party whip. And if they don’t, they can be held liable by the Speaker of the House, they can even be disqualified from the house. This is extraordinary. This cannot be far too removed from the original vision of the constituent assembly. I don’t see how this has been upheld, why did this not get the hammer of your basic structure doctrine. There is no reason this kind of amendment should have a place in any constitutional polity.

I think reservations and affirmative action have drifted very far from the original vision. Now there are two three ways of slicing and dicing this. One is, the right-wing conservatives always like to say Ambedkar only wanted reservation for 10 years and then he wanted it to be eclipsed, that’s the Eclipse sunset clause in the Constitution. So, one way of thinking about it is this very reductive way. That’s not what I mean by drift. I mean the original purpose of protected classes was historical oppression. And that is why the Dalits and Adivasis are included in that category. You get a big break in the Mandal moment, this is your post 1990 politics. And the big break is now, we are also going to include people who we no doubt agree are disenfranchised in some shape or form. I mean if you look at the caste system it’s really the upper caste Brahmin Kshatriya Baniya groups who have positions of power. So, there is no question that the OBC’s were disenfranchised, but were they historically oppressed in the same way as Dalits and Adivasis, which was envisaged in the original constitutional framing, or were they also in fact the oppressors, in large part? So, this is something we have never really, you know, deeply debated and discussed as a polity, more broadly as a society. Why do we need affirmative action? Is it an antidote to poverty? is it an antidote to unemployment? is it an antidote to historical oppression and disenfranchisement? that I think we never resolved as a society, and you see that in your constitutional politics. So now you’ve snuck in another very large group. You have now reservations extended to economically weaker sections. This is your 103rd amendment. Now we are no longer thinking of historical oppression, as the deciding factor. Now this is literally saying this is a poverty and jobs and welfare program open to anyone, even upper castes. If you look at some of the cutoff points in this amendment 85% of Indians fall within the land and income cut off points. This is not what the original Ambedkarite vision was; we have come very far from it. So, I’m not even going into the debate of whether India should have reservations or not. I’m saying the original framers placed reservations given a particular cultural context. We have drifted very far from it with no debate or discussion as a society.

Another, if you look at your fundamental rights and I’m not just talking about your right to property being deleted. Article 21 has nothing to do with the original article 21. It’s no longer a due process clause, we no longer have due process. Writ remedies are not what they used to be. You’re basically just using a continuing mandamus provision as a PIL tool but your other writs have been completely compromised. Habeas corpus, which is the cornerstone of any civilized society, has been completely broken. So, these are not formal amendments but we simply don’t pay any heed to these writs anymore right so that’s another huge drift, which has happened by judicial interpretation. I think also your, you know, your original framers were very, very clear that Directive Principles were not enforceable and fundamental rights were the enforceable portion of the Constitution. And should there be a conflict between the two, the fundamental rights would trump. And in your first decade and a half, two decades, that’s the dominant judicial view also. In case there was a conflict between fundamental rights and directive principles fundamental rights would prevail. Now, that starts changing in judicial interpretation in later years, quite clearly.

You also have 31 C which is still part of the Constitution, which is shocking to me. Right, I mean it completely cuts the legs of your fundamental rights in one stroke. And I think the Supreme Court in the 80s did not do the right thing. I mean these are terrible opinions. So technically 31 C should have been completely struck down post Kesavananda Bharati saying it compromises the basic structure of the Constitution. And assuming fundamental rights are part of the basic structure, but then they have a caste system, even within the fundamental rights. 14, 19, 21 get some special status and all others don’t get the special status. So now you have some highly messy situation. I don’t even know what it is exactly, frankly, it’s very confusing. I don’t think anyone knows. If you have constitutional amendments, which further Directive Principles, which violate 14, 19, 21 they can be struck down under the basic structure doctrine, but if they violate other fundamental rights, then they may not be struck down. This is kind of the position. Now what that means precisely nobody knows. And everything passes now. That’s why a jobs program and a welfare entitlements program like the 103rd amendment can now mask itself as reservation and affirmative action program. So, the kind of drift we’ve had in the Constitution is frankly shocking. The biggest drift is of course how we appoint the judiciary. You read 124 and see how they are making appointments, and you will think, not just that you’re in different countries but on different planets. They’ve taken one word, which is in consultation, and just run with it and created a completely separate procedural document which is not in the text of the Constitution. It’s frightening that we’re able to do things like this. I think that has been probably the biggest drift, other than what’s happened with fundamental rights.

I think what is happening with citizenship right now and what is forthcoming, I mean the nightmare that awaits us post-pandemic if they decide to go through with the CAA-NRC combination, is going to completely overturn the framers’ vision of what it means to be an Indian and who qualifies to be an Indian, and that it will not be based on ethnicity and religion but it will be based on birth, so that’s going to be another huge drift. So, these are the ones I have identified in five minutes. We could have another year long seminar on this, but the constitutional drift is enormous, and we need to fix it, and everyone is to blame: parliament, the original framers, the judges who’ve done this by interpretation, as a society that we have allowed it. I mean, all of it, it’s a complete mess.

Parv– Shruti, thank you so much for being so generous with your time. I look forward to reading more of your work and continuing this conversation, it was delightful. Thank you very much.

Dr. Rajagopalan– Thank you so much, Parv. This was such a pleasure. I am afraid, each, each answer was so long winded, but you asked really broad questions that made me think.