As part of its workshop on South Asian constitutionalism, the South Asia Law Discussion Group hosted a presentation by Dr. Tarunabh Khaitan on ‘Securing Losers’ Consent for India’s Constitution: The Role of Directive Principles’. The primary discussant was Dr. Anashri Pillay, Associate Professor in Law at Durham Law School. Khaitan’s key argument is that constitutional directive principles can serve as an important device for constitutional consensus-building by achieving the expressive accommodation of ideological dissenters.

Khaitan adds to existing literature on constitutional consensus-building techniques, by focusing his attention on ideological dissenters during the constitution-making process, and correspondingly, to ideological disagreements in deeply divided societies. He argues that his category of ideological dissenters are concerned with two important respects. First, they seek expressive recognition of the normative values that they believe a constitution should adopt, for example, the economic character of the new state. Second, they are politically optimistic and do not wish for the constitution to engage in purely pragmatic power-sharing – instead they seek some recognition of their ideological agenda.

Further, Khaitan fills an important gap in the literature on constitutional directive principles. Non-justiciable directive principles have been incorporated in several constitutions, and consist of directives to the political organs of the state to programmatically secure certain transformative goals. Little attention has been paid by comparative constitutional law scholars to directive principles, due to their non-enforceable character, dismissing them as mere moral statements without practical significance. In comparison, Khaitan takes a positive view and argues that they are of instrumental significance in securing the consent of ideological dissenters during the constitution-making process. In the Indian context, scholarship on the directive principles of state policy has largely been centred around what Khaitan terms as the ‘uncontested’ directive principles, relating to various socio-economic entitlements, and their relation to fundamental rights. He focuses on ‘deeply contested’ directives, such as those on cow slaughter, and the prohibition of alcohol consumption, which are rapidly regaining salience in the present political context. Although these provisions are largely seen as constitutional embarrassments by liberals, and contradictory to central values of the constitution, Khaitan argues that these must be viewed as ‘constitutional triumphs’ and perhaps were key to the endurance of the Indian constitution.

Khaitan argues that India was ideologically deeply divided at the time of the framing of its constitution – the socialists, Gandhians and Hindu cultural nationalists were the three main ideological dissenters within the constituent assembly. He argues that to obtain their consent to the constitution as a whole, some of their expressive demands were accommodated as directive principles in the final constitution. Two techniques were used to achieve a balanced accommodation of their demands – containment (by changing their radical demands into more moderate versions), and incrementalism (by deferring some questions to be addressed and progressively realised in the future through the political process). The programmatic directive principles were well placed by design to serve these functions. It must be noted that two important ideological groups - the Muslim League and the communists - were absent from the constituent assembly. The expressive demands of the Muslim League may have been settled through Partition. The communists boycotted the constitution-making process. An assembly thus concerned with the representative legitimacy of its own existence, ought to have been concerned about their expressive demands, and one must explain why they find no place in the constitution. This raises questions about the commitment to obtain genuine consensus around the constitution from all groups. 

As pointed out by the discussant, Dr. Anashri Pillay, the piece seems to be going beyond making a claim regarding the instrumental value of directive principles in obtaining the consent of ideological dissenters, to making normative suggestions about constitutional directives. The piece contains suggestions that directive principles may be important to alleviate legitimacy concerns during the constitution-making process. The Indian constituent assembly was not elected through universal adult franchise, and there were concerns regarding whether it truly represented the people. In this context, it is suggested that directive principles can serve as a tool to bridge the democratic deficit that the assembly faced. Further, the piece suggests that directives may be important to enable contested ideas with polycentric concerns to be resolved programmatically through the political process that may be more competent to decide the same. Finally, it would be fruitful to undertake a wider study of constitutional directives in other deeply divided societies, to test how far the arguments made by Khaitan hold beyond India.