Kushagr Bakshi on Constitutional Interpretation and the Transformation of Federalism

SHRUTI RAJAGOPALAN: Welcome to Ideas of India, a podcast where we examine academic ideas that can propel India forward. My name is Shruti Rajagopalan, and this is the 2024 job market series, where I speak with young scholars entering the academic job market about their latest research on India. 

I spoke with Kushagr Bakshi is a Michigan International and Comparative Law Scholar and an SJD candidate at the University of Michigan Law School, where he also received his LLM. He received his first law degree from NUJS in West Bengal. We discussed a chapter of his dissertation called “The Country Without a Post Office: Jammu and Kashmir and the Imaginations of Freedom Within a Federation." We talked about assymetrical federalism versus hetererarchy, constitutional values and imagination for federalism in India, and much more. 

For a full transcript of this conversation, including helpful links of all the references mentioned, click the link in the show notes or visit mercatus.org/podcasts.

Hi, Kushagr. Welcome to the show. It’s such a pleasure to have you here.

KUSHAGR BAKSHI: Thank you so much for having me.

RAJAGOPALAN: You’re one of the few people who’s written a dissertation and actually sent me most of the dissertation, so I really appreciate that, and I enjoyed that. I want to first talk about your job market paper. This is the chapter titled “The Country Without a Post Office: Jammu and Kashmir and the Imaginations of Freedom Within a Federation.” You are looking at this complicated relationship between India and Jammu and Kashmir vis-a-vis the constitutional provision of Article 370. 

Your main argument is that the constitutional relationship between Jammu and Kashmir and India should have been viewed through a lens of constitutional pluralism, where both the Indian and the Jammu and Kashmir entities were looked at as maintaining autonomous traditions or constitutional orders that were actually interacting with each other. You argue that Article 370 was intended to create this nonhierarchical, rather heterarchical relationship based on a bunch of shared values but also on the regional differences or specialties that required it.

Using this theoretical basis, you then go on to critique the abrogation of Article 370 in 2019. Then, of course, you have a further critique of how the Supreme Court dealt with the constitutionality of abrogating 370, and so on, and we can get to that. Is this in general a good summary and a good starting point for what you were trying to do?

Asymmetric Versus Heterarchical Federalism

BAKSHI: I think that’s actually perfectly put. The general thesis, or at least when I started this dissertation, the general understanding that everybody gave of Article 370 and Kashmir was, it’s an asymmetrically federal provision. I never truly understood what that meant in the sense of asymmetry, neutrally understood, is just difference, but that doesn’t really tell us what that difference actually entails, why it exists, what its meaning is. That’s where I started the project of looking at: Look, the text of Article 370 clearly envisions a role for the Constituent Assembly. The Constituent Assembly of Jammu and Kashmir would’ve told us what the difference is. Let’s look at it. 

It was quite surprising to me that there’s, save for one book, which reproduces excerpts of it, almost no scholarly writing on the Constituent Assembly of Jammu and Kashmir. That’s where the initial idea for the dissertation grew out of. 

Then of course, to put that in context, I started reading the Indian Constituent Assembly debates and the history of what was happening at that point in time. I figured out that they were working towards the same goals that they wanted. Put broadly they wanted to inculcate some spirit of democracy amongst the population. There was some version of: We need to be able to protect minority rights in a way that also involves giving minorities power, not just these rights guarantees. And there was obviously a focus on: We need state-led socioeconomic transformation. 

These play out in interesting ways; I thought in the Kashmir example. The Big Landed Estate Abolishing Act, the redistribution of land is the perfect example of the state-led socioeconomic transformation. That explains the difference and what asymmetry means in the Jammu and Kashmir context. That’s why certain articles of fundamental rights did not apply under Article 370, and then the first basic order that came after that because we had a right to property at that point of time. We wouldn’t have been able to do expropriation without giving compensation. The people of Jammu and Kashmir or the government at that point didn’t want to do that. 

That’s where the dissertation arose out of. Of course, it does then eventually lead to a critique of, I think, the abrogation is wrong. I think a bunch of the Indian Supreme Court’s jurisprudence from Sampat Prakash to Maqbool Damnoo is totally incorrect and makes absolutely no sense. In the later chapters, I’m hoping to build out a more fleshed-out critique of all of these.

RAJAGOPALAN: What you are suggesting, sometimes it just seems quite radical to me. There are a few different ways of looking at Indian federalism. If we go back to the 1950 moment, and especially if we read it in the context of what was happening with the transfer of powers and V. P. Menon’s entire exercise, it becomes quite clear that the idea of state-level autonomy, or even smaller princely states—the idea of autonomy was very much valued, but the idea of sovereignty was extinguished. 

This was supposed to be a union. It wasn’t a loose federation. It wasn’t what was imagined in the 1935 Act. It wasn’t how the European Union is designed in contemporary times. State-level, princely states were very much giving up their sovereignty in exchange for joining the union of India. I think that it’s relatively clear that Jammu and Kashmir is not a separate sovereign entity, which some people have argued. 

Another explanation in the literature is, as you pointed out, this idea of asymmetric federalism. This is true for some of the northeastern states. This is true not just of religious minorities and majorities, it’s also true for tribal communities in the border states, but we have some border state exceptionalism. It’s asymmetric with Punjab, for instance. President’s rule has a bigger exception for Punjab. Jammu and Kashmir then falls into that asymmetric federalism. 

Now, you are arguing that both of them are not true. This is a different and a third thing, which seems very radical if we now stretch it beyond Jammu and Kashmir. Are we supposed to think of all states in this manner? What you call the fidelity approach in later chapters. Is this how we should be thinking about our constitutional jurisprudence when we think about breaking up a new state or turning a union territory into a state away from the Jammu and Kashmir region, when we think about breaking it further into linguistic sub-national units?

Are we now thinking about going back to the 1930s and looking at the debates in that particular princely state? Are we going to go back further in time? Are we going to look at the treaty of the East India Company with that particular native state? How radical are we talking here?

BAKSHI: That’s a huge question with a lot of different moving parts. I’m going to try and give the simplest answer that I can over here. The idea that I have is that the way that we think of these exceptional regions in the northeast and in Punjab and Jammu and Kashmir show the actual version or form of the exceptionalism that plays out is probably exceptional, is probably dependent, and definitely in Kashmir, is dependent upon the context of that region and therefore you get specific provisions. 

That exceptionalism is undergirded by a set of constitutional values. Now, I call them voice, rights, expertise—different people can call them different things, that’s fine—but broadly, the values are: We want to protect minority communities through power. We understand that we need to inculcate democratic participation, not merely representation, and that we need to envision some degree of expertise helping out with state-led socioeconomic transformation. This I think is a broad understanding of Indian constitutionalism that most people would likely agree with. I would think that this is what the values of the Indian Constitution can be interpreted as. I’m not saying it’s the only reading, but it’s certainly one reading that people can come up with.

RAJAGOPALAN: It’s the standard Austinian reading. Let’s assume that, and we’ll work with it.

BAKSHI: There we go. There’s a transformative reading as I see it. I think that those values should inform our analysis, not of DPSPs or of rights, but also of institutional divisions of power, of how federalism functions. What I call the fidelity approach, which is, again, drawn broadly from the European Union and German federalism, that’s where they use this as a doctrine. In the Indian context, you can call that constitutional morality. That’s how I see it, like in NCT versus Delhi, when Justice Chandrachud or Justice Mishra are giving out their, “Why we think this is not okay. Here is our vision of defensive federalism or uncooperative federalism,” they’re relying on this concept of constitutional morality, which is principles of the Constitution writ large, which we should use when we’re interpreting constitutional text, which includes the institutional structures that a Constitution provides. 

That’s how I think we should be interpreting constitutional provisions, not just for the courts, but also for other non-judicial constitutional actors. When a governor is, for instance, employing a pocket veto, he should recognize that by the standards of constitutional morality, you are actually giving up the democratic functions that the Constitution was supposed to embody. Even though there is no specific textual provision that prevents you from doing it, you are actually acting in violation of that constitutional morality. 

That’s how I think we should be interpreting these sets of different problems that are going to come up, whether that’s state reorganization, whether that’s the pocket veto, which of course has been settled, the money bill provision in the Rajya Sabha would be a really good example, I think that’s coming up. I know that in October they said there’s going to be a seven-judge bench on it. I don’t know where it’s led to eventually.

RAJAGOPALAN: Nowhere.

BAKSHI: Delimitation, that’s going to happen supposedly before the 2026 election. 

You’d want to look through these principles to understand how these actions, which are fundamentally just constitutional actions of dividing power, should be carried out. I don’t specifically have an answer for how I think all of it should go. Because I think different people would come up with different weightages for these values that I’m putting out, and therefore, come up with different solutions. 

Insofar as these are the values that are guiding your process, then I think you’re maintaining fidelity to what federalism in India was supposed to be, and what we can think of as our best version of Indian federalism, the Indian federal project and the Indian Constitution in its best light if you follow these values.

RAJAGOPALAN: I’ll tell you the problem I have with this. It sounds straightforward and simple, but it is really opening up a different Pandora’s box. 

Now, I’m not saying I agree with this interpretation of constitutional morality, but let’s say I did. Should this be the benchmark that is used for adjudicating constitutional amendments? Should this be the guiding rule when we break up states? Should this be the guiding rule for malapportionment and delimitation? Should this be the guiding rule for fiscal federalism and how the finance commission makes its apportionments? Those are the practical questions. 

There is a procedural question also that goes hand-in-hand with this. I was recently reading the paper by Rohit De and Ornit Shani where they talk about [how] India had not just one Constituent Assembly or Constitution in the making, it had hundreds. I believe it’s going to be a forthcoming book, and I’m looking forward to it. Sarath Pillai, who’s another Constitution historian, has written about, like yourself, the influence of German thought on Indian federalism in the ‘30s. Arvind Elangovan has written about this when it comes to the 1935 Act.

Now, that’s the second procedural question of, which documents are considered part of our constitutional tradition or a particular region that will be used to adjudicate this? Now, you’re going to say, “There were these number of orders in Jammu and Kashmir, and that’s part of their constitutional history.” What happens with Travancore? What happens with Hyderabad? What happens with those tiny, tiny princely states which have six villages but end up entering a constitutional exercise? When you say, “I think of it in a fairly straightforward way,” this suddenly becomes very messy.

BAKSHI: Let me put it this way, I think all Constitution politics is inherently always going to be messy, and I don’t think there’s any real way of escaping that. I’ll take both the questions in. The first one: Should we apply this vision of morality to actual disputes? Yes, and I think we do. I think we adjudicate amendments through the concept of the the basic structure doctrine. The basic structure doctrine is broadly these values in a different form. It doesn’t have a definite set, but it is essentially this in different forms. Of course, from that has flown a bunch of scholars who are now writing on the unamendability of certain constitutional provisions and so on and so forth, which is essentially I think this: There is a core of the Constitution that should be guiding us. 

RAJAGOPALAN: I thought the whole point of the basic structure doctrine was that it’s a moving target, and it’s not going to be a particular core set of values. When we see it, we will know it, but we won’t give you an exhaustive list. If it was an exhaustive list, I would completely agree with you, but the entire beauty of the basic structure doctrine is that it’s not an exhaustive list of constitutional morality. We will move this. It’ll be the shifting, vague, and amorphous goalpost. We will take contemporary problems and contemporary morality as we go along.

BAKSHI: That’s certainly it. But at the level of abstraction, which I am suggesting constitutional morality through voice, rights, and expertise, it is fundamentally also that. I’m not entirely trying to tell you that I think local governance, as in village panchayats, is the definitive requirement of this constitutional morality. I’m just trying to tell you that participatory democracy is important. How you achieve it works up to you. 

Now, I would say secularism as part of our basic structure doctrine would also be part of this constitutional morality that I’m thinking through. I’m not entirely saying therefore you must only do, let’s say, positive secularism or a negative secularist model. I don’t know. All I’m saying is that the concept of secularism should be informing these decisions as you are thinking through them for a constitutional actor. It is still at that level of abstraction where it’s not really specifying particular outcomes, just giving you guiding principles, which is how I do think through the basic structure doctrine as well. I hope that answers the first part at least. 

The second part is, I don’t actually think those are procedural questions. I think those are interpretative questions.

RAJAGOPALAN: I think they’re procedural questions on what gets included at the table and what doesn’t. Are we going to use this particular order or this particular set of old documents to give validity or weightage to what we’re considering? The interpretative question is determined by the evidentiary and the procedural question. You’ve just snuck that in by saying that the constitutional documents of Jammu and Kashmir have got to be part of the process.

BAKSHI: I would actually look at it the other way around. I think we make our interpretative choices and then shield it in, “Oh, but it’s actually procedure.” You would look at the judgment in the 370, Justice Chandrachud goes through a long portion of, “This is the history; this is how it happened,” and that history is told from one perspective. We’re told to accept that this is, in fact, a constitutional perspective. There’s no guiding procedural value or any rule that says you can only consider…

RAJAGOPALAN: Because that’s a terrible judgment. It’s not because the rule that you’re giving us doesn’t sneak it in. I believe the judges have done a terrible job. I wouldn’t devalue your dissertation because of the terrible job they did.

BAKSHI: Sure. My point is not to highlight that I think the reading of the history is wrong. I think they said, “We only look at Constituent Assembly of India Debates, as this is the procedure we follow,” except the text of Article 370 clearly tells you ‘you should be looking at the Constituent Assembly of Jammu and Kashmir,’ and yet you refused. That’s an interpretative choice. Then you’re later saying, “No, no, but I think this is in fact the procedure.” That is an interpretative choice you’re making.

I think those are interpretative choices judges are making in all sorts of questions like rights adjudication, other structural adjudication. Those are just interpretative choices. I’m not entirely sure that I would ever be, “The Constitution prescribes this procedure of interpretation.” I feel like no Constitution I’ve ever read prescribes a procedure of interpretation.

RAJAGOPALAN: That’s fair. Let me then rephrase the question because I think maybe I interpreted your chapter a little too broadly. Because of the way Article 370 is originally written, your argument is that these other documents have to be part of the discussion and get a seat at the table, right?

BAKSHI: Yes.

RAJAGOPALAN: You would not necessarily make that case for other kinds of documents. Would that be a fair way of understanding?

BAKSHI: Yes. Because I would make that choice based on the specific document. You would always start with, “Here is the document. How do I read this in its best light?” This document clearly tells me I do need to look at the Constituent Assembly of Jammu and Kashmir debates.

Isn’t this Asymmetric Federalism?

RAJAGOPALAN: Fair enough. Now, this goes back to the core of your chapter where you say that you don’t view this as asymmetric federalism. If we don’t think Kashmir deserves this special exception just like many other border states do, then why would we give those documents the validity or 370 a particular reading in the first place? 

That goes back to my original theoretical question that then it just sounds a little bit like asymmetric federalism, not so much like heterarchy because heterarchy has to apply across all the states. It can’t just apply to Jammu and Kashmir. If it applies only to Jammu and Kashmir, then it’s not heterarchy. It is either confederalism or asymmetric federalism. It can’t be both. That’s why I read it so broadly. That’s why I read your chapter so broadly, if that makes sense.

BAKSHI: I think I can clear that up. I wouldn’t ever say Kashmir is not asymmetrical federalism. If you want to say it’s asymmetrical federalism, fine. I think asymmetrical federalism is an empty term. If you’re looking at a specific constitutional relationship with Kashmir, constitutional pluralism might be a better way to understand it. That’s what I’m suggesting in this chapter. 

RAJAGOPALAN: Isn’t that also about as empty as asymmetric federalism?

BAKSHI: Which is why heterarchy becomes important. Constitutional pluralism is predicated on heterarchy, on this nonhierarchical relationship. Let’s put it in another way: Right now, Kashmir is still an asymmetrical federal region insofar as it’s a union territory, and that’s asymmetrical federalism, right?

RAJAGOPALAN: Yes.

BAKSHI: That’s not the original understanding, and that’s not what constitutional pluralism entails. Constitutional pluralism, by definition, entails a degree of non-hierarchical or heterarchical structure where you can compete, coordinate, or whatever it is that you want to do. How that would apply to an interpretation of other federal relationships in India, I’m not entirely sure that I would ever say that Maharashtra has a heterarchical relationship with the union.

I do think that the hierarchy in Jammu and Kashmir is based on this morality of voice, rights, and expertise. I think the relationship of Maharashtra to the union should also be understood through this structure of voice, rights, and expertise. In a very practical sense, the way this would play out is, residuary power, center–state legislative conflicts. 

RAJAGOPALAN: President’s rule.

BAKSHI: President’s rule, yes.

RAJAGOPALAN: The ability to change something from a state to a union territory. The ability to split two states without a vote in the state legislature. We’ve done it withAndhra Pradesh and Telangana. We’ve done so much of this.

BAKSHI: President’s rule—I think it’s out now—I have a paper in the Journal of Comparative Law, which promotes this democratic fidelity version of how you should interpret federal president’s rule and how it should be used in particular cases. Now, of course, if it was up to me, a priori, I would be like, “No, this is a bad provision. Please get rid of it.”

RAJAGOPALAN: I’m glad you agree. I have a paper, which is currently under review, with a bunch of my co-authors, which shows that riots and natural disasters and genuine emergencies are not a predictor of president’s rule at all. It is almost entirely legislative arithmetic and political considerations which drive it. It’s a pretty largescale empirical exercise that we’ve done for every single state and union territory. I think we’re both on the same page why it’s a terrible rule.

BAKSHI: I think that was the facial justification of the Constituent Assembly. If I remember correctly there was a lot of fear of, “We think that there are going to be more separate tendencies,” and there was a red scare. “We think the communists are going to violently take over election booths, and that’s why we want to have president’s rule.” While natural emergencies may have been the pretext…

RAJAGOPALAN: No. I think [natural emergencies,] riots, breakdown in law in order, and breakdown in constitutional machinery—all four. This gets reinforced in 1988 and [the] Sarkaria Commission. We actually test for all four.

BAKSHI: Excellent.

RAJAGOPALAN: None of these are good predictors.

BAKSHI: I agree with you completely. I will read this paper as well, but I completely agree with you. I don’t think we should have president’s rules. Insofar as we have president’s rule, I am saying that through these values, you can interpret it in a particular way where it’s meant to be solely restorative, and it cannot be used to, say, in the Kashmir example again, you use president’s rule to enact a permanent change. That’s fundamentally opposed to what president’s rule is meant to be. It’s meant to be solely restorative. My interpretive approach will help you come out with that conclusion as opposed to the Supreme Court’s fairly terrible judgment.

RAJAGOPALAN: Actually, this is a good point to get into this because we are stepping away from the Kashmir tinderbox. Punjab is a case of exceptional use of president’s rule. It’s been used more continuously in border states. Punjab was an extreme example. Would we consider Punjab as part of that heterarchical relationship or the various constitutional morality provisions that you talked about as part of how we think about that amendment of Punjab being exempt from the limitations of president’s rule? Would that then be off the table and unconstitutional, that particular amendment within this heterarchical structure? 

BAKSHI: I would think so.

RAJAGOPALAN: So the heterarchy does extend beyond Jammu and Kashmir?

BAKSHI: Yes.

Limits to Heterarchical Federalism

RAJAGOPALAN: Now, what are the limits to that, I guess is my question. Because this is what I’m trying to understand. If it’s very specific to Jammu and Kashmir, this is very much a theoretical case of exceptionalism and asymmetric federalism. 

If this extends beyond Jammu and Kashmir, and I understand the circumstances are different, now what are the limits to this? Because we are a centripetal union by design. The Constitutional Assembly debated it. They very much baked it into the original design. You can see this across the board. You see it in emergency powers, which we discussed. You see this in residual powers. You see this in the fiscal federalism. You see it in the fact that there is an automatic devolution. You see it in the fact that local governments were not created, through the 73rd, 74th amendment, [which] comes in very, very late. Now, you see it with the problems caused by the 1970s amendments and delimitation and malapportionment. 

Again, I don’t want to discuss, necessarily, the practical applicability. What would be the limits to the heterarchy if we read it along with the Indian Constitution outside of Jammu and Kashmir?

BAKSHI: That’s what I’ve been trying to push for a while. Heterarchy, specifically this non-hierarchical structure where the state government and the central government are not in this hierarchical relationship—I’m not sure that you can actually read that outside of Jammu and Kashmir and a few other examples that I do build on my dissertation, northeastern states and Autonomous District Councils, so on and so forth.

The heterarchy is undergirded by this fidelity approach that states and center should be allowed to compete or coordinate, democratically contest based on these values of voice, rights, and expertise. I’m not entirely sure that I follow in terms of what would you mean by limits. I think that you would use these principles to see if this is where the bargaining is happening. Sure.

RAJAGOPALAN: I would say it limits in the sense that if we genuinely extend the idea of heterarchy to other states, different states are going to have different problems. Punjab has this issue with emergencies. Bihar has a serious issue with intergovernmental transfers and lack of ability to generate its necessary fiscal resources. 

To what extent do we treat these problems as very specific to the region, and that’s how we litigate the constitutional disputes? Or let’s say between two states. When it comes to river water disputes—this is a huge one—if these are heterarchical units to what extent do we have this overarching centripetal government union of India that can actually make those contestations or have this extra vote in those contestations? Because that’s what it finally comes down to. If I really think about what you’re saying, every single constitutional dispute then has to be read in a particular lens if heterarchy is the guiding constitutional principle.

BAKSHI: I think that’s the maximalist version of the paper. That’s not entirely where I am going with this project.

RAJAGOPALAN: That’s why I asked you about the limits. I totally appreciate that. What would be the minimalist or the circumscribed version of this? It would be nice to have a Jammu and Kashmir example just because that is just such a unique situation.

BAKSHI: Sure. I’m going to give a very case-law example because fundamentally I’m still a lawyer. 

RAJAGOPALAN: Perfect.

BAKSHI: Mar Appraem Kuri, which now is the guiding standard for center–state legislative conflicts, is really a strange case where the central government is regulating chit funds. Kerala is regulating chit funds. Both of them have the authority to reregulate chit funds. The central government legislation specifically says, “This does not apply to the state of Kerala for a period of so many years,” and yet the Supreme Court says, “No, no, centripetal federalism. The central government has occupied the field so to speak. Therefore, we think that the Kerala state government’s legislation is unconstitutional.”

That, I think, is the wrong approach. My approach would yield exactly the opposite result because I would think that the Kerala state legislature is embodying the political preferences of their electorate, which is voice. They are protecting their rights in a place where there isn’t a central overarching figure, and they are using state expertise to regulate how these chit funds would work out within that state regulatory framework. That’s an example of how I differ from, let’s say, the centripetal federalism argument that the Supreme Court uses and where my argument would lead you to different ways. 

RAJAGOPALAN: No, this is super helpful. This is actually exactly the thing I was trying to understand.

BAKSHI: There’s another case. I’m forgetting the name, but it’s about nationalizing bus routes. Where the Supreme Court says, “No, no. This is actually a correctly occupied field.” My approach says that’s fine because that is an actual legislative conflict that occurs between the central government regulation and the state government legislation insofar as [I], as an individual, cannot follow one without breaking the other. At that point the Supreme Court decides that, “No, we think nationalizing transport routes is something that we’re going to leave to the central government. That’s how our scheme plays out.” That’s voice, rights, and expertise leading you to a different outcome. 

I will say also in my theoretical framework that the centripetal versus centrifugal seems an unnecessary distinction that doesn’t really do much for me. At least the way I read it in the Indian context, it’s based on K. C. Wheare reading the American federation saying, “This is great. India’s not doing this. We are quasi-federal, and we’re centripetal federalism.” I’m not sure how much this helps in actual legislative disputes or in actual conflicts that we see in federalism.

This is not to say that the Constitution does not have a centralizing drift. It does. I cannot deny that, but I think just saying it’s either centripetal or centrifugal is not particularly helpful. Here’s my interpretive approach, which is going to be particularly helpful in on-the-ground cases. That’s where I would lead this. That is not the maximalist claim of UP should, fight the center, they’re in the same heterarchical manner that I think Jammu and Kashmir does.

RAJAGOPALAN: Fair enough.

BAKSHI: That is, the maximalist version of my fidelity approach is heterarchy in Jammu and Kashmir.

RAJAGOPALAN: The reason I was led to the maximalist approach, in all fairness, is because the way you set it up is you contrast the heterarchy with confederalism and asymmetric federalism, right?

BAKSHI: Yes.

Democracy in Local Governments

RAJAGOPALAN: If you are drawing this distinction very specifically, then I think the impetus is to understand how heterarchical federalism is different from asymmetric federalism. That’s not a criticism, that’s just the way one reads these things.

Now, coming back, I think that the example you pointed out is super useful. I also agree with you that quasi-federal, it’s weird. It’s like being a little bit pregnant. When we were young, our civics textbooks used say that India is a federal country with a unitary bias. I feel like folks like you and I have spent our entire adult lives trying to understand what that one sentence means. You are either federal or you’re not. This quasi-federal is neither here nor there. 

I agree with you that centripetal federalism is more descriptive than it is a guiding norm for how we interpret these disputes. What happens in cases where we’ve not had the elections? This is now a really big problem with a lot of local governments. A lot of urban local bodies. Now, I’m talking about the different level of federalism. I’m talking about state versus local. These elections sometimes don’t happen for years. They get postponed. There are other issues where someone from the central or the state executive can actually dismiss a democratically elected sarpanch. There are all these problems, situations where the voice has not been exercised in line with how you’ve set up the framework. How do we resolve the disputes in those instances?

BAKSHI: I think local governments are a bit of an institutional anomaly in that we do keep saying, “Here’s a third level of federalism,” but is it really a third level of federalism? Do they actually have that degree of autonomy to be able to contest? 

RAJAGOPALAN: If I go your reading, absolutely. Because it has voice, rights, and expertise. That’s the framework.

BAKSHI: Sure.

RAJAGOPALAN: Absolutely then. They have democratic representation and participation. They recognize the importance of local knowledge and governance. Maybe they’re not as specific about the socioeconomic or positive socioeconomic rights, but two out of three in your framework are checked off.

BAKSHI: My framework is not a way of telling you what is federal and what is not federal. I would think that because they lack the institutional capacity to actually enforce voice, rights, or expertise, I’m not entirely sure that we can call them a third level of federalism. This is not a descriptive framework of, if they have voice, rights, expertise, they’re therefore a federal country. That’s not what I’m trying to say either. That’s my problem with thinking of local governments as a genuine third level of federalism because they do lack a substantive institutional capacity to enact these measures, which is a problem.

I would love a third level of federalism, and I think they should have the institutional capacity to be able to enact this. I sometimes read the GST judgment, I have my qualms about it, but I sometimes read the GST judgment and fiscal federalism in this sense. When the Supreme Court decides that you don’t have to be bound by these recommendations that you’re giving, to an extent, what they’re doing is offering states that institutional capacity to be able to actually implement a degree of voice, rights, and expertise. That’s how I would,with the voice, rights, expertise go to, you need to have institutional capacity to be able to actually express this kind of stuff.

RAJAGOPALAN: I think it’s very similar to states, where there are certain local governments that have fantastic capacity. You’re talking about local governments in Maharashtra. You’re talking about MCD. Kerala has fantastic local-level governments. Tamil Nadu is building them up. You have the same with states. Some states have very, very good capacity, and there are border states and smaller states which can’t even maintain law and order.

I’m not sure if the institutional capacity route gets us where you want to get us because there’s a lot of heterogeneity in local governments. There’s also heterogeneity in states. That’s typically used both by the Union Executive and by the courts for when the Union Executive should swoop in and save the day. I’m not sure that gets us out of the bind.

BAKSHI: Sorry. I don’t mean institutional capacity in the way that economists understand it. I mean institutional capacity in the way that, do you have a constitutional devolution of powers which offers you a degree of autonomy?

RAJAGOPALAN: It’s the same thing. It’s really the same thing.

BAKSHI: To my mind, then, I think this would help in Mumbai’s example. Maharashtra has a lot of institutional capacity. The BMC is a pretty big deal, and there these frameworks can help if such disputes occur between the state and the local government. Then the High Court or the Supreme Court can use this framework that I’m proposing to help and sort out those disputes. Where they don’t have that institutional capacity, the framework is not going to offer you that. It’s just not going to be able to help you with that aspect. You need to have that for this framework to help you sort out these disputes, is how I would say it.

RAJAGOPALAN: I think that gets us in deep trouble with Manipur, Nagaland, Arunachal Pradesh. If we use the same rule for union–state interpretation, now we are seriously getting in trouble.

BAKSHI: I should confess, I’ve not much thought about local government. 

RAJAGOPALAN: I’ll tell you where I think I’m struggling with this. When I think of constitutional morality and a set of interpretive guidelines or procedural guidelines, we need it to be able to have some predictive power in resolving current and future disputes. That’s part one. The second question is, do we apply them not uniformly because that’s almost impossible to do? Circumstances are different. That’s the whole point of interpretation. Are we using the same rule or the same doctrine across the board? The outcome may differ in particular instances.

If we don’t, then we are back to the exceptionalism of Jammu and Kashmir, and I have trouble with this heterarchy idea. If we do, then I want to understand the contours of it a little bit better in all of Indian federalism. Because what you are really telling us is, “Hey, this is a new way of thinking about federalism.” What you’re doing is much more novel and radical, and I think goes beyond how we think just about Jammu and Kashmir. It’s a different view of how we think of the Union of India. That’s why I want to figure out the contours of this.

It does matter for fiscal devolution, it does matter for GST, it does matter for local governance. I understand that you may not have intended to extend it all the way there, but I do think it will start mattering for everything from river water disputes to border disputes.

BAKSHI: The aim of the project is exactly that. The aim of the larger dissertation is, here’s a theory of Indian federalism that you can use. Now, it is an interpretive theory and mostly directed to constitutional actors. 

To your specific questions, does it have predictive power? I think it’s more about offering a set of principles or constitutional frameworks within which these debates, discussions, and fights can happen. I don’t necessarily think it’s going to predict that this is always going to cut in one way or cut in another way.

RAJAGOPALAN: I don’t mean to predict outcome. I mean predict the doctrine that will be used.

BAKSHI: I do think that these principles of voice, rights, and expertise should guide how we engage in these disputes. Not just courts interpreting these disputes, but constitutional actors who are actually engaging in this dispute should be thinking through these values when they’re trying to fight this out. Does it apply to fiscal federalism? Yes. I am discussing how that applies to fiscal federalism in the third chapter. Does it apply to rights protection? That’s something I’m discussing in the fourth chapter as well. Then, the expertise chapter, which I’m writing through right now, and therefore I don’t have a clear view, is going to help [on] how it applies to local government, which is why the legislative conflicts were an example that I was able to give out. Emergency powers are another example. The pocket veto of the governor is another example. 

I do think that this is how all authority disputes between higher- and lower-level authorities should ultimately be read. This is how we should be looking at authority disputes between higher- and lower-level authorities.

RAJAGOPALAN: If I think about that all the way through, what you’re really saying is there is no higher and lower authority. There are different governments, and they have their areas of operation, and we need to very seriously take the heterarchical idea that this is not centripetal, it is not asymmetric. These are different spaces with different domains. Now, we have to bring in their regional legislation, regional constitutional documents, regional practices, their constitutional morality into the mix. 

I don’t find that particularly concerning one way or another. The only thing that concerns me there is India is a collection of anywhere between 5,000 and 10,000 villages. This could be an interesting experiment.

BAKSHI: Is that not federalism? Is that not the purpose of federalism that we need to be able to say that these are competencies meant for local governments, and they should be able to do that on their own? 

RAJAGOPALAN: Completely agree there. Except that completely flips the current Constitution of India, we need some serious amendments and some serious interpretations to fix it.

BAKSHI: I’m not sure that it flips the Constitution. 

RAJAGOPALAN: The Constitution is centripetal.

BAKSHI: I think I’m trying to prove to you that this is the best reading of the Constitution that I can offer based on historical sources, other political debates that were happening at the time, and so on and so forth. That’s still not going to change the descriptive fact that, in the US for instance, there’s a larger number of areas that are left for state competence as opposed to India, [where a] smaller number of areas are left to state competence. I don’t think my framework is going to be able to tell you that “No, no, in my framework, what’s in the union list should actually be in the state list.” That’s not something I’m suggesting either.

I am saying that insofar as it is on the state list, my framework is going to tell you how to resolve the disputes that arise when someone is encroaching or when someone is not encroaching, which we more commonly know as center–state legislative conflicts.

RAJAGOPALAN: The disputes always tend to be more granular. The shape they take is, “Hey, this is number so and so in list one versus two versus three of the seventh schedule.” The specifics tend to be very granular. If we read it, as in the case of Punjab or in the case of a government, which doesn’t quite have the expertise or the voice, we’re going to do things a little bit differently. See the thing with heterarchy is, in a sense, you’re saying it derives power from itself. It can’t necessarily be devolved. If we take that idea seriously, I think it’s a very serious contestation to the existing Constitution, which I’m frankly happy with. I’m okay going [in] that direction. I’m just saying we need to understand what it is that we’re doing.

BAKSHI: Sure. The thing is, I’m not sure that it’s as much of a radical break because I think that is the idea of the Constitution. Dr. Ambedkar’s defense of federalism in the Indian Constituent Assembly was that you derive power independently from the Constitution. You are not dependent.

RAJAGOPALAN: They said all these lovely things, and then what they wrote down is [a] highly centralized police state.

Rethinking the Rajya Sabha

RAJAGOPALAN: Kushagr, now that we’re taking this idea of heterarchy seriously, how would you rethink Rajya Sabha? Because that seems to be a key element, at the union level, in terms of trying to balance both the state interest, state autonomy, state sovereignty, if we actually bring that into the picture. How would you deal with that? 

BAKSHI: I will say I’m not a political scientist, so I don’t have institutional design answers to this. I’m going to stick to the legal answers that we have. I think it’s important to try and actually imagine the Rajya Sabha as a Chamber of States. If I remember this correctly, Shubhankar Dam once argued that it roughly functions as a House of Lords type of version instead of actually functioning as a Chamber of States. I’m not sure that that’s entirely accurate, but we could do with some reinterpretation in those lines.

If I remember correctly, there is a question before the Supreme Court in a seven-judge bench about whether the Lok Sabha, which designates something as a money bill, can be judicially reviewed, therefore bringing, for instance, the Aadhaar Act, of course, as we all know, and other such important questions, which the Lower House has now classified as money bills and is trying to skirt around the debate of it, whether we can get that back into a chamber-of-states question and get the Rajya Sabha to actively debate it, and then have more voices of the states represented. 

There’s also a question of the institutional neutrality of the vice president, which I do think we need to take a lot more seriously. The incident that’s bringing this up is, of course, the expulsion of members. The vice president and the president were meant to be constitutional functionaries, were meant to act with, as Justice Chandrachud would call it, “a vision of constitutional morality.” That’s something that we do need to take seriously.

There is an open debate I’ve seen, amongst Indian legal scholars, not so much in the political field anymore, about whether Kuldip Nayar was a judgment that we need to get over or not. I personally have complicated views about this. I don’t entirely think removing the residence requirement legally was that big of a deal because Manmohan Singh, for instance, even before Kuldip Nayar, would just rent a house. I’m not sure how much of a difference reinterpreting Kuldip Nayar or getting rid of it as a whole would make to this entire question. These active legal questions aside, there is a need for the Indian political parties to start thinking of the Rajya Sabha as a chamber of states which can represent the interests of states.

I hesitate at the word “state sovereignty,” and I actually distinctly make a point and never use it in my thesis and explain why I think it’s a rather unhelpful way of thinking about things. States’ interests being represented, people’s interests in that geographical unit being represented, that I think there is a need to take a lot more seriously.

I can comment on the legal questions, but I think there are institutional design questions through constitutional amendments, which I’m sure political scientists are better equipped to comment on than I am.

RAJAGOPALAN: Honestly, I understand why you want to limit yourself to the legal interpretation question, because that’s also the core of the way you modeled your dissertation. To me, none of these are silver bullets, as you pointed out. They all need to come in clusters because heterarchy is not like one piece of paper that someone signs or holds up or puts in their office and says, “Now we have what we need.” It’s a combination of things. It is a combination of anti-defections switching too much power in the hands of the political parties as opposed to leaving it with either the states or the individual constituents.

It could be the domicile requirement that you pointed out in Kuldip Nayar. It’s money bills. It’s the role of the vice president. It’s residual powers. It’s emergency power. It’s so many things all put together. We’ve not even touched upon how we choose the governor and whether it makes sense to have a union-cabinet-picked appointee to be the head of the state governments, as we have it, and have all these enormous powers that go with it.

I’m very much with you on there is a larger question of institutional design, but I don’t think it’s limited to one thing. It’s a cluster of things. There I think I’m much more in line with your broader thinking, which is, there is a question—I don’t even know if constitutional morality is the word I would use—I think there’s a constitutional imagination. We need to get on board with the idea of how important states are and our imagination for India being this union of states, with states having a very important seat at the table as opposed to states being these weird branch offices of the union government. I think that’s the thing which is much more missing.

I’m an economist. I don’t like that word “constitutional morality.” It’s so vague and so hard to pin down that I think that’s why I stay away from it.

BAKSHI: I think I would call myself an anti-positivist lawyer, which is why I love the term “constitutional morality.” I completely agree but this reminded me, someone wrote a paper a long time ago, which I’m forgetting right now, which starts with this really fun line, “If the institution of governor did not exist, no republican democracy would think to invent it,” which is great. I love it.

I completely agree with the larger point you’re making as well. I can, of course, speak authoritatively, too, and I do in my thesis, about these legal questions that are before the court and how we can do interpretations in a particular way, but I think there is a need for a larger political imagination that needs to happen, which can actually lead to substantive changes in the Rajya Sabha or in other aspects where the principle of heterarchy or constitutional morality, whatever it is you want to call it, could apply.

That, of course, my thesis is not going to be a silver bullet for, and if I tried to write about that, my thesis would just never end. I’ve limited myself to these questions, but there is a need for political actors, constitutional actors, and even individual voters to try and think through these principles seriously, and then that perhaps can lead to more systemic changes that we want in the Indian federalism.

RAJAGOPALAN: I like the idea of your thesis almost as, let’s use it as a thought experiment device for everyone, both on the left and the right, or whichever way you want to split it, people who are union versus state, whatever are the fault lines. The way I would think about your thesis is, if I agree with everything you say for Kashmir, am I willing to endorse that for Bihar and for Manipur and for Assam and for Karnataka? If I am, then you know where I lie on constitutional heterarchy.

If I’m not willing to give that much room or heterarchy for the statehood of Jammu and Kashmir, as you advocate for, then am I willing to also give that up for Tamil Nadu? I think at the very least, the way you’ve set up the dissertation, though we are quarreling and quibbling over words and precise meanings, it’s a very useful thought experiment overall for how we think about federalism. That’s why I was pushing you earlier in the conversation on, is this Jammu and Kashmir exceptionalism or asymmetric federalism and so on. Because if what we say for J and K is true for others, then now how are we imagining the state–union relationships, versus if it’s not true, then how are we imagining state union–relationships?

BAKSHI: The reason I was also pushing back is because I don’t try to do that in my thesis.

RAJAGOPALAN: I know.

BAKSHI: Since it is partly a historical thesis, and there aren’t historical materials which support us to think in this way. That’s not to say that that constitutional imagination is cut off. I would welcome and I hope that this can, as I suppose any academic hopes, spark off conversations and writing in that direction and move our thought in those directions.

The reason I was being limited in my thesis is because it is partially also a legal history thesis. When we start with that history, there’s no way to think through the founding or the pre-founding documents to come up with this idea that what we thought of in Kashmir would also apply to Bihar, or Maharashtra, or Tamil Nadu, or anything of that sort. I do, however, make the point in my thesis, and this I think could be useful to think this through, that those same principles can be interpreted, and in fact, to an extent, were meant to be interpreted in that way, or is the best interpretation of Indian federalism. That, I think, is interesting future work that, of course, I’m going to try and do in a postdoc or as soon as I get a tenure track position, or hopefully that other people can also pick up and see where that goes. I think this is where comparative work can really help us.

Part of my thesis is, of course, legal history, but part of my thesis is competitive work. There are fantastic institutional design questions and fantastic interpretive questions not only from the US, yes, we do look to the US, but Canada, Australia, the Swiss federal experiment, the German federal design, or even for that matter, Spanish federalism, which could really help us think through. Or what I do in my thesis is to take the EU as a whole and see how we can compare from that, which I think can lead us more productively in these conversations instead of just looking back to history as I’m doing right now.

RAJAGOPALAN: Also I think just context. Context starts mattering a lot. In India we have a situation currently, especially since post liberalization, post 1990, you have states that are actually diverging. The richer states are growing faster than the poorer states are growing. The poorer states are also growing, the richer states are also growing, but there is no convergence that we have seen yet. The more centralized you are, the more it means that the extremes in this divergence are going to feel extremely short-changed.

I think there’s a lot to learn even from the recent history of the Indian experiment. We have seen Indian states wanting to split up. There’s a huge call to split up Uttar Pradesh, if not linguistically, at least administratively. We can just look in our own backyard to start with. 

I really enjoyed reading the part of the thesis that I have already read, and I look forward to reading the rest of it. Thank you so much for doing this, Kushagr. This was a pleasure.

BAKSHI: Thank you very much for having me on. This was excellent.