The New Challenges

In one line

Most of what is called a new challenge is an old challenge in newer clothes, and the few that are genuinely new share one feature: the Constitution was built to restrain a State that acts, and the new problems come from a State that has withdrawn, delegated or simply not decided.

In the wording a student can write in an exam: the paper's title asks a question and expects it to be answered, not assumed. A challenge is new only if it could not have been stated in the same terms in 1950. On that test, federal friction, reservation, secularism, the appointment of judges and the criminalisation of politics are old and unresolved, and calling them new is a mistake of description. Three challenges are genuinely new: the private body performing a public function after liberalisation, so that the right has no one to run against; the technological environment in which speech and privacy now exist; and the scale and anonymity of money in the democratic process. Underneath all three lies one structural change: the classical danger was the State doing too much to the citizen, and the modern danger is the State doing too little, or acting through somebody the Constitution does not reach.

What the title is actually asking

A question set on this paper's title is not a request for a list. It asks the student to sort, and the sorting is where the marks are.

Apply three tests to any candidate challenge.

Test one, could it have been stated in 1950? If yes, it is old. It may still be urgent, and it may be unresolved, but it is not new.

Test two, is the challenge new, or only the vocabulary? "Cooperative federalism" is a modern phrase for an old question about who decides, dealt with in [Cooperative and Competitive Federalism]. New words are not new problems.

Test three, does the existing constitutional technique reach it? This is the test that matters. A problem the Constitution can already handle badly is a failure of implementation. A problem the Constitution's own architecture cannot address at all is a new challenge.

Old, unresolved, and often mislabelled

Five of the biggest items on this syllabus fail test one.

Federal friction. The Governor, the dissolution of an elected government, the sharing of revenue: [The Governor], [President's Rule], [Emergency and the Federal Balance] and [Fiscal Federalism] all describe fights the Constituent Assembly foresaw. [Is India a Federation?] shows the design was contested before it was adopted. What has changed is the arena, not the argument. Even [The Goods and Services Tax and Its Council], the newest federal institution, raises the oldest federal question: who decides, and what does a State do when outvoted?