Amity Institute of Advanced Legal Studies

Amity University Uttar Pradesh

Subject: Comparative Public Law

Topic of Assignment:

Need for Socialist Policies in Constitutional Framework:

Subaltern Perspective

Submitted to:
Dr. Sachin Rastogi

Submitted By:
Ryan Sinha
LLM (Business Laws)
Enrolment No. A0319321059
Batch: 2021-22
 TABLE OF CONTENTS

INTRODUCTION ........................................................................................................ 3

I. SUBALTERN PERSPECTIVE ON CONTEMPORARY CONSTITUTIONAL

FRAMEWORK ............................................................................................................ 4

II. CONSTITUTIONALISM : DIFFERENCES BETWEEN MARXIST AND

LIBERAL APPROACHES .......................................................................................... 6

‘LIBERAL’ CONSTITUTIONALISM................................................................................. 7

MARXIST (SOCIALIST) CONSTITUTIONALISM.............................................................. 7

III. THE NEED FOR SOCIALIST POLICIES IN CONSTITUTIONAL

FRAMEWORK ............................................................................................................ 8

USA............................................................................................................................. 9

UNITED KINGDOM ....................................................................................................... 9

INDIA ......................................................................................................................... 10

IV. NEED FOR SOCIALISTIC POLICIES IN CONSTITUTIONAL

FRAMEWORK OF INDIA ....................................................................................... 10

CONCLUSION ........................................................................................................... 12
ABSTRACT

The paper seeks to understand how modern democratic constitutional frameworks operate
within the domain of Socialist laws. The interrelationship between a welfare state operating
from within a constitutional framework is analysed through a subaltern perspective and Marxist
theories.1The objectivity of a welfare state is hampered the moment constitutional framework
is divorced from the Socialist policies because it is these socialist policies that strike at the heart
of development and ensures a parity between the parens patriae obligation of the state and the
need for economic development of the individual along with the aesthetics of the community
interest as a whole.

INTRODUCTION

Before the hypothesis of the paper is contemplated and elucidated it is important to take into
context the key terms of the issue at hand. A subaltern perspective on “Socialist Policies” can
very easily be misunderstood and like all Marxist theories – miscommunicated. The essential
question that stands is – what is a subaltern perspective and how does it help in analysing the
conjunction of socialist policies and their need in present day constitutional frameworks?

Almost all major premise of a Marxist socialistic tenet borrows its thought and ideals from a
nearly similar Hegellian jurisprudence. It is in this situation that most academics prefer to open
a discourse on socialistic policies with a quote from Hegel himself, to lend a more authoritative
tone to their diatribe. In this context, Sir Henry Maine’s theory from the Historical
Jurisprudence school seems apt, where he famously remarks – “the movement of the
progressive societies has hitherto been a movement from status to contract”.2 To elucidate this
in modern times, a nation chasing progress cannot in all consciousness allow individualistic
ambition to trump social contractarian goals of the community – and at the macro level, the
nation. This is where we realise that though constitutional framework allows for the allocation
of inalienable rights to the individual, in almost all cases those are restricted and are seldom
puritan or absolute rights. The implication of socialist policy therefore is not only restricted to
the welfare schemes and policies, but also stretches into a deep and pervasive core of the

1
Chakrabarty,Dipesh, Marx after Marxism: A Subaltern Historian’s Perspective, 28 Economic and Political
Weekly, no. 22, pp. 1094-96 (1993), http://www.jstor.org/stable/4399780.
2
Maine, Henry Sumner, Ancient Law: Its Connection with the Early History of Society, and Its Relation to
Modern Ideas, (John Murray, 1861).
constitutional scheme of the nation, its citizens and their interrelationship amongst themselves
and the state as well.

If we change the perspective and see the inter-relationship between socialist policies in a
constitutional framework as largely a collection of interests, governance then becomes mere
balancing act of various interests and harmonization of those very interests to achieve
“Benthamite utopia”3 i.e. maximum happiness for maximum number of people with
minimalistic friction.4 Rudolf Von Ihering’s Interest Theory5 stretches the idea of “interest”
which is protected by norms to mean – Law. If law, then, emanates from the struggle of
individuals and groups then socialistic policies intervene at the very core to eliminate probable
conflict and harmonise the aspirations of these “interest groups” – individual or community
against the larger interest of the state.6

SUBALTERN PERSPECTIVE ON CONTEMPORARY CONSTITUTIONAL

FRAMEWORK

Hegellian constructives are “Dialectic Idealism”7 as opposed to “Dialectic Materialism”8

envisaged by Marx and Engels and coined into modern terminology by later Soviet socialists
such as Georgi Plekhanov.9 To simplify the contrast between both ideals, suffice it to say that
Hegel believed that the mind’s perceptions have an idealistic effect on human experience, thus
was born the theory of “Thesis, antithesis and synthesis”.10 Both Marx and Engels along with
later socialists of the postcolonial era discredited it in what is believed to be a more
“materialistic” outlook. To put it in layman terms, they believed that socioeconomic realities
and interactions are interrelated and born out of the contradictions within these realities. The

3
Guidi, Marco L., My Own Utopia: The Economics of Bentham’s Panopticon, 11 The European Journal of the
History of Economic Thought, no. 3, pp. 405-431 (2004), DOI: 10.1080/0967256042000246485
4
Volume 1, Bentham, Jeremy, An Introduction to the Principles and Morals of Legislation, pp. 3- 8,
W.Pickering (1823)
5
Ihering, Rudolf Von, Law as a Means to an End (translated from German: Issac Husik), pp. 215-217. Boston
Book Company (1913)
6
Nalbandian, Elise, Introductory Concepts on Sociological Jurisprudence: Jhering, Durkheim, Ehrlich, 4 Mizan
Law Review, no.2, pp.349-351 (2010)
7
Lincoln, Charles, The Dialectical Path of Law, pp. 237- 254, Lexington Books (2021). See Also Hegel, Georg
Wilhelm Friedrich, Science of Logic, (translated by A.V. Miller) pp. 335 and 368-370, Allen & Unwin (1969)
8
Engels, Fredrick, Dialectics of Nature (transcribed by Sally Ryan), Progress Publishers (1967)
9
Plekhanov,Georgi V., For the Sixtieth Anniversary of Hegel’s Death (transcribed by Andy Blunden),
Lawrence & Wishart (1961), source: https://www.marxists.org/archive/plekhanov/1891/11/hegel.htm
10
Wood, Allen, Honderich, Ted (ed.), The Oxford Companion to Philosophy, pp. 212, Oxford University Press
(2005)
understanding of Marxist dialectics paved the way for Subaltern analysis which to this day
continues to understand and theorise based on the observations of the marginalized social
groups.

A subaltern perception11 takes into its factors the present day and contextual “proletariat” so to
say. Thus, parochial considerations and the igonominy of caste, class, creed, gender, sex, race,
ethnicity etc. are all considered relevant parameters within a subaltern perspective.

In USA, this would include the Blacks, the Hispanic and the Whites. In the Middle East it
would include the Ahmediyas, the Wahabis and the marginalized shias. In India, it would take
a slightly larger sample size based on the demographics. It can stretch from caste born
privileged/lower caste to economic disparity of the SEBC (Socially and Educationally
Backward Classes) and the recently introduced EWS12 (Economically Weaker Sections). Thus
a subaltern perspective on the whole highlights the role of the un-represented and/or the under-
represented to posit an alternate image of a society as against the socio-political mainstream –
“elites”.

From the viewpoint of governance, it is highly relevant and important as it directly ties into
understanding and implementation of socio-economic welfare schemes and its permeability
within the society. From the Indian context, a veritable example of the subaltern understanding
can be seen in the implementation of the “Ujjwala Yojana”13 by the Government. The Ujjwala
Yojana added an economic incentive in the wake of “subsidy” for LPG connection with the
option of forsaking the “incentive” for an economically weaker citizen. This serves as a classic
example of subaltern considerations within socialistic policy.

The Subaltern perception is deeply entrenched within the Constitution of India. One of the
foremost proponents of subaltern studies – Dr. B.R. Ambedkar, who was the chairman of the
Drafting Committee of the mother document always maintained that the marginalized sections
of the Indian society need emancipation to become makers of their own destiny. Thus, we see
a highlight of his ideological narrative within the fundamental rights specifically Article 15(3),
(4) and (5), Article 16 (3), (4) and (4A); and Article 17 amongst many others. Thus socialistic

11
Young, Robert J.C., Postcolonialism: A Very Short Introduction, Oxford University Press (2003)
12
INDIA CONST. Art. 15(6) and 16(6), amended by The Constitution (One Hundred and Third Amendment) Act,
2019. See Also “Union Cabinet approves 10% reservation for economically weak among upper caste”, The
Times of India on 7th January, 2019 ( Retrieved 25th January 2019).
13
Ujjwala Yojana for LPG Subsidy of BPL household, accessed on 18 th November, 2021 at:
https://vikaspedia.in/energy/policy-support/pradhan-mantri-ujjwala-yojana
ideals are married to deep and pervasive obligations of the state to ensure equality in all respects
and manners within the constitutional framework.14

In the United States of America, although it may be argued that President Lincoln was the first
initiator of the subaltern perspective within the American constitution through his
Emancipation Proclamation15 issued on January 1, 1863, it serves neither as a part of a
constitutional framework nor is it a socialistic policy within governance. The fact that this “soft
law” led to a civil war does little to uphold its status in academic consideration of this
hypothesis. However, one can trace the inception much later in 1954 when Brown vs. Board of
Education16 challenged the perception of “similar” and “same” to positively reinforce equality.
The signing of the historic Civil Rights Act17 (1964) by President Lyndon B. Johnson can be
said to be the first step in the interlinking of socialistic considerations within the constitutional
framework of the United States.

CONSTITUTIONALISM : DIFFERENCES BETWEEN MARXIST AND LIBERAL

APPROACHES

Modern day constitutional frameworks are tightly bound around the idea of constitutionalism.
This is vastly different from the notions propagated by early Roman and Hellenistic scholars.
Despite its evolution, structural similarities in features remain the same i.e. a system of division
of powers and an arrangement of checks and balances. The idea behind constitutionalism is the
removal of manifestly arbitrary acts by the state so that the government remains responsible.18
Essentially, scholars agree that constitutionalism desires that the system be provided with
adequate techniques and procedures that can bring about a systematic and orderly change. It is
essential for a democratic polity in view of the fact that it limits the powers of the government
and seeks to check the “abuse of power”.19

14
Austin, Granville, The Indian Constitution: Cornerstone of a Nation, Oxford University Press (1999)
15
Lincoln, Abraham, The Emancipation Proclamation, (issued on January 1, 1863) accessed at National
Archives U.S., source: https://www.archives.gov/exhibits/featured-documents/emancipation-proclamation
16
Brown vs. Board of Education of Topeka, 347 U.S. 483 (1954)
17
Civil Rights Act, 1964, Article 1 § 8 (Pub. L. 88-352, 78 Stat. 241enacted July 2, 1964), 88th United States
Congress (US)
18
Fehrenbacher, Don E. Constitutions and Constitutionalism in the Slaveholding South, pp.1, University of
Georgia Press (1989)
19
Wheare, K.C., Federal Government (4th Edn.), pp. 10 (1963)
In spite of the concurrence along salient features of constitutionalism, scholars seem to be
divided on the approach to the precepts.

‘Liberal’ Constitutionalism

Strongly advocated by western writers such as Thomas Paine20 and most recently by Granville
Austin21, lays emphasis on this point that the basic laws of the land should be such that
constitution is more important than the government.

The western or liberal concept of constitutionalism desires a ‘constitutional state’ that has a
well acknowledged body of laws and conventions for the operation of a limited government. It
has a legislature, an executive, and a judiciary all required to work within the prescribed
framework by following the defined procedure. If there is a change, it should be peaceful and
orderly so that the political system is not subjected to violent stresses and strains.22

Marxist (Socialist) Constitutionalism

In a socialist ideology the concept of constitutionalism varies greatly from its Liberal/neo-
liberal counterparts. Here the idea is not to have a “restriction” on governmental powers but
rather to embolden it in order to ensure a classless society23 and additionally to remedy any
impediments in the state’s path to achieving welfare for the community as a whole.

In India, the constitutionalism is liberal whereas the constitution is “socialist influenced”24,

which is why the constitutionalism in India is not pure as some other western states such as
United States of America. However, it is well customized to fit the conditions of the country.
The flexibility in the constitutional framework that India and other similar nation states boast
of is lent by a “socialist” leaning.

As is well documented, since the advent of the Russian Revolution, socialism has been adopted
by many nation states with structural differences in conventions, governance and practice. So,

20
Meng, John J., The Constitutional Thories of Thomas Paine, 8 THE REVIEW OF POLITICS, No. 3 [University of
Notre Dame du lac on behalf of Review of Politics, Cambridge University Press], pp. 283-306 (1946 accessed
at: http://www.jstor.org/stable/1404421.
21
Austin, Granville, Working a Democratic Constitution: A History of the Indian Experience, pp. 635-717,
Oxford University Press (2003)
22
Ibid, 20
23
Marx, Karl, Part I: Critique of the Gotha Program, (1875) retrieved 2008-07-05 at:
https://www.marxists.org/archive/marx/works/1875/gotha/ch01.htm
24
Excel Wear vs. Union of India, (1978) 4 SCC 224, 245: AIR 1979 SC 25
socialism in Russia, China, Cuba and any other nation state is absolutely distinct from each
other. This is so because socialist policy allows a free reign to suit a style of governance that
best caters to “community welfare”.

THE NEED FOR SOCIALIST POLICIES IN CONSTITUTIONAL FRAMEWORK

Even though a lot of socialist states at the turn of the 20th century became autocratic and
increasingly “police state” the intent was always to ensure welfare, sometimes “even by force”
or through coercive tactics. This is one of the main disadvantages to the usage of socialist
policy in a polity.

Socialism is diametrically opposed to the Laissez faire25 system where free will is a prime
concern. The ideological genesis of this is best explained in Rousseau’s Social Contract
Theory26. Free Will is commensurate with the belief in the innate goodness of an individual
and the assumption of operating under little or no malice.

Socialism, on the other hand, advocates that the ‘state knows best’. The ideological genesis lies
in John Locke’s theory27 where he suggests ‘homo homini lupus est’ i.e. man is a wolf to
another man and operates with a high degree of self-interest and malice28. Thus, man can not
be trusted to take his own decisions of welfare which must be reposed in a higher authority,
which in this case is the state. Thus, the parens patriae obligation of the state here manifests
from the individual’s lack of awareness and tolerance to accommodate another individual’s
interest. Since socialist policies disregard an individual’s mental faculties to distinguish
between good or bad, it takes the matter into its own hands and completely disregards “free
consent”. This is the reason that almost all social welfare schemes operate under the umbrella
of a mandate with little or no room for public consensus. Although, slightly coercive, it still
proves to be way more efficacious in ensuring long term developmental goals. An example in

25
Manley, Nick, Brief Introduction to Left-Wing Laissez Faire Economic Theory: Part One, Stigmergy: The
C4SS Blog (20th November, 2021), Center for a Stateless Society: https://c4ss.org/content/category/stigmergy-
c4ss-blog
26
Rousseau, Jean Jacques, The Social Contract (translated by G.D.H Cole), J.M. Dent & Sons (1782)
27
Locke, John, The Second Treatise of Government (1690) from the original Two Treatises of Government
(Reprinted and translated by A. Millar et. al), Hackett Publishing Company (1980) accessed at:
https://www.gutenberg.org/files/7370/7370-h/7370-h.htm
28
Hobbes, Thomas, Leviathan or The Matter, Forme, and Power of a Commonwealth Ecclestiasticall and
Civill, Ian Shapiro (ed.), Yale University Press (2010).
this regard is the Right to Education inserted via the 86th Constitutional Amendment Act, 2002
as Article 21A of the Fundamental Rights of Citizens guaranteed by Constitution.

USA

In the United States of America, the Socialist Policies in the constitutional framework could be
seen most during President Obama’s tenure. The introduction of ‘Obamacare” as a more viable
and sustainable National Health policy was a step in ensuring community focus towards better,
accessible and affordable healthcare.

United States’ Socialist policies have always advocated a pro-labour legislation to organize
working class into an equal representation. The labour reforms include access to better benefits,
union recognition status and ability to ensure collective bargaining through such unions.29
Socialism in the United States has, as recently as 2020, through electoral rallies of Sen. Bernie
Sanders and (State Primary) Alexia-Ocasio Cortez cemented a vital step in the political rung.
This is so because Socialism in the country has always been used as a tool to argue economic
interventionism, Federal Deposit Insurance Corporation, universal single-payer healthcare,
medicare etc.30

From the early civil rights movements to Black emancipation and access to public
infrastructure for all, Socialist policies in USA have helped to transition the Constitutional
Framework agreed upon in the Philadelphia convention, to more acceptable, community-
oriented and inclusive one that stands today.

United Kingdom

In the postwar period for a brief time, the United Kingdom did experiment with a socialist set
up in the same way as India. However, after the government failed to keep pace with the rapid
economic changes and growing needs of the citizens the government transitioned back to a
more “populist” structure albeit with a little room for socialistic practices.

The Labour Party in the United Kingdom has been one of the forerunners in including and
championing causes such as inclusivity of LGBTQ+ population, gender equality, Women

29
Rhinehart, Lynn; McNicholas, Celine, Collective Bargaining beyond the Worksite, Economic Policy Institute
(May 4, 2020) accessed at: https://www.epi.org/publication/collective-bargaining-beyond-the-worksite-how-
workers-and-their-unions-build-power-and-set-standards-for-their-industries/#
30
Reinhardt, Uwe E., Socialised Medicine?: A Taxonomy of Health Care Systems, Economix- New York Times,
Retrieved (15th July 2020).
Suffrage and more recently the country wide popular NHS scheme that guarantees a national
healthcare plan accessible and affordable by all.

India

In the landmark judgment by the Hon’ble Supreme Court in Keshavananda Bharti vs. Union
of India31the preambular features were upheld to be the “basic structure of the constitution”
and as such become immutable by arbitrary state action. Socialism is one such feature. Time
and again whether it be the question of affordable healthcare infrastructure (Novartis AG vs.
Union of India)32 or the inclusivity of the marginalized communities (NALSA vs. Union of
India33; Navtej Johar vs. Union of India34) to making provisions for the social outcasts (Indira
Sawhney vs Union of India)35 and ensuring qual access to public infrastructure (most notably
see Indian Young Lawyers Association vs. State of Kerala)36. Socialist policy remains the
bedrock of India’s growing and ever-changing polity.

NEED FOR SOCIALISTIC POLICIES IN CONSTITUTIONAL FRAMEWORK OF INDIA

Our constitutional tryst with socialistic policy framework can be traced as early as 1951 with
State of Madras vs. Smt. Champakam Dorairajan37 setting the benchmark with representation
of the marginalized interest in educational institutions i.e. the earliest conception of reservation
policy in India. On the other hand the tussle for power sparked one of the most landmark
judgments for land reform the inception of which can be traced to U.P. Zamindari Abolition
Act, 1950.38 The legislation that sparked a cascading effect of land reform dispute with the
states, the first of which began with State of Bihar vs. Kameshwar Prasad.39 While the
implication of these disputes in modern contextual reference, especially in connection to Indian
Constitutional framework needs no introduction, what is important to note is the legislator’s
intent behind it all.

31
Keshavananda Bharti vs. Union of India, (1973) 4 SCC 225: AIR 1973 SC 1461
32
Novartis AG vs. Union of India, (2013) 6 SCC 1
33
National Legal Services Authority vs. Union of India, AIR 2014 SC 1863
34
Navtej Singh Johar vs. Union of India, AIR 2018SC 4321.
35
Indira Sawhney vs. Union of India, 1992 Supp (3) SCC 217: AIR 1993 SC 477. See Also Indira Sawhney (2)
vs. Union of India, (2000) 1 SCC 168: AIR 2000 SC 498.
36
Indian Young Lawyer Association and Ors. vs. State of Kerala & Ors., 2018 SCC OnLine SC 1690
37
State of Madras vs Srimathi Champakam Dorarirajan, AIR 1951 SC 226: 1951 SCR 525
38
The Uttar Pradesh Zamindari Abolition and Land Reforms Act, U.P Act No. 1 of 1951, Acts of Uttar Pradesh
State Legislature (India).
39
The State of Bihar vs. Maharajadhiraja Sir Kameshwar Prasad, 1952 1 SCR 889.
Borrowing heavily from the words of the preamble where the makers have vowed to promise
the nation “Equality of status and opportunity” which directly corroborates the “Socialist”
insertion in the mother document.

While many argue that Socialistic policy orientation was not the original intent of our founding
fathers and was an afterthought, it simply is not the case. It is indeed an unequivocal fact that
the word “Socialist” was inserted via the 42nd amendment act, 1976.40 However, what must be
noted is that by then the policy framework and the socio-economic outlook of the state itself
had undergone a paradigm shift. As explained earlier, in keeping with its parens patriae
obligation the government had decided to opt for a more macro-level governance and started
to focus primarily on problems affecting community aesthetics. Thus, the land reform acts, its
subsequent inclusion in the 9th schedule, and executive arbitrariness stemming from its belief
to be sole repository of people’s rights were all born out of the very same intent. Thus, in
hindsight it made sure that the situations that affect the community as a whole never take a
departure from state’s vision and mission, ergo the 42nd Amendment seemed a mere reiteration
of the past circumstances that created the narrative “state knows best” which was seamlessly
married into parens patriae and the objectivity of a Welfare State.

All socio-economic situations subsequent to this merely reaffirm the need for a socialist
intervention. Be it the emergency period or the Inward-Looking Trade Strategy41 (ILTS) that
focused on self-sustainability and self-sufficiency of a primarily agrarian economy, inclusion
of the term “socialist” allowed the government more room to operate with a significantly larger
free hand in governance.

It is also essential to understand that the Socialist policies in any constitutional framework run
the risk of some of the most textbook criticism i.e., stagnation, industrial underdevelopment
and damnation of the individual skill and know-how. However, it is also important to
understand that socialist policies are essentially good governance because it allows a significant
balance to ensure societal progress. Much of the governmental policies in the latter half of 21st
century India be it Poverty Alleviation Programs (PAPs) like MNREGA, or the relatively
recent “Beti Padhao, Beti Bachao” and “Ujjwala Yojana” are all successes because of their
socialistic outlook and community driven initiatives which, had it not been for the inclusion of

40
INDIA CONST. inserted into the Preamble (“Socialist”), by The Constitution (Forty-Second Amendment) Act,
1976.
41
Salvatore, Dominick & Hatcher, Thomas, Inward and Outward Trade Strategies, pp. 7-25, 27 JOURNAL OF
DEVELOPMENTAL STUDIES (1991).
the word vide the 42nd Amendment, would not have been possible to maintain to such a large
extent.

CONCLUSION

Karl Marx once remarked, what can today be held especially true for socialism, “From each
according to his ability, to each according to his needs”42. This is perhaps one of the best ways
to describe the inclusivity of socialistic policymaking at the heart of any constitutional-polity.
The bandwidth covered by Marx’s statements alone, stretches from a need-based societies to
ability based ones, and socialist policies can indeed serve as a single umbrella, to cover the
entirety of a country’s demographics irrespective of how diverse it is.

From a subaltern level, inclusivity of the marginalized is one of the ideal goals of a
constitutional framework and essentially a quality check mechanism of good governance
practices. It is in this regard therefore, that constitutional frameworks can not take a departure
from socialistic laws. In fact, need for more socialistic laws indicate that a welfare state is
slowly and steadily progressing along the path of welfare.

While dealing with socialistic practices in lawmaking, misconceptions regarding its Marxist
genesis can spell doom for any nation state. Chiefly, confusing socialism with communism, is
one of the deadliest blows for any polity. It is therefore important to keep the policy framework
community oriented and welfare intended rather than focusing on its nature and/or genesis. As
long as a policy is favouring the collective consciousness of the community and is intended for
welfare of the people, it tends to be socialistic insofar as its focus is on equitable distribution
and not just equal distribution.

42
Supra, 23.
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