Stretching the Constitutional elastic Part I: Institutions, federalism and executive discretion

The Constitution of India is like an elastic band. It is both flexible and rigid at the same time; no matter how much one moulds it, it retains its original shape. Yet, like an elastic band, the Constitution’s elasticity is not limitless. Stretch it too far and it risks losing shape or snapping altogether.

Indian political history shows that every strong government has attempted to test this elasticity. Some have done so through bold amendments and sweeping laws; others through quieter acts of institutional capture, fiscal centralisation, or the manipulation of federal structures. From Nehru’s First Amendment to Indira Gandhi’s Emergency-era 42nd Amendment, from the Mandal Commission to the present debates over ‘One Nation, One Election’, the story of India’s democracy is also a story of governments repeatedly probing the outer limits of constitutional tolerance.

Granville Austin, in The Indian Constitution: Cornerstone of a Nation, described this phenomenon as the ‘inevitable friction’ between social revolution and institutional discipline, often justified in the language of efficiency, stability or social justice. Yet, underlying these claims is often an impulse to consolidate political power by bending stretching the constitutional elastic.

The genius lies in the Constitution's capacity to evolve without collapsing. Evolution has a limit and beyond a point, evolution means survival. Survival depends on invisible thresholds set by the constitutional courts. Beyond these thresholds, adaptation becomes distortion. Justice M Hidayatullah’s concern of the Constitution being a "plaything of a special majority" remains deeply relevant today, when constitutional changes are often bulldozed through parliament by sheer numerical strength numbers rather than principle. This loss of restraint, either through gradual encroachment or sweeping reforms, poses a greater threat to the Constitution than any single act of violence.

This article is presented in two parts and examines six arenas where this constitutional elasticity is now most visibly under strain. The current part focuses on institutional and federal dynamics, examining how reservation policy, fiscal federalism and the evolving role of Governors reshape constitutional balance through practice rather than amendment.

Governments, driven by political expediency, have often used reservations as a tool of populism rather than social correction. The 50% ceiling on reservations is a judicial limit that emerged from Indra Sawhney v. Union of India, which upheld the Mandal Commission’s recommendation of 27% reservation for OBCs (excluding the ‘creamy layer’) in public employment, while capping total reservations at 50%.

The question of this 50% forming a part of the Constitution’s basic structure remains unresolved. The Court stopped short of declaring it unamendable, leaving room for dexterous political and judicial flexibility over time. In the Maratha reservation case, the Supreme Court reaffirmed the 50% cap while also acknowledging that a departure could be justified in extraordinary circumstances.

Governments, motivated by political and social pressures, often compel the Centre and judiciary to recalibrate constitutional limits post-facto. States like Tamil Nadu and Rajasthan have instances of more than 60% reservation. However, these are protected under the Ninth Schedule.

Another point of stress lies in the relationship between merit and social justice. It is often seen that reserved category candidates who qualify on open merit, referred to as Meritorious Reserved Candidates (MRCs), occupy general seats. Practices such as MRC migration, where such candidates opt for reserved seats in higher-ranked institutions and the vacated general seat is reabsorbed into the reservation matrix, along with horizontal reservations, further reduce general category seats. As Abhinav Chandrachud observes in These Seats Are Reserved, the 50% rule does not ensure that half of all seats go to the general category. Despite the cap, non-reserved candidates often end up competing for only a fraction of total seats.

The EWS amendment illustrates how judicially crafted limits can be diluted through majoritarian will. Reservations for candidates from the economically weaker sections, who were earlier part of non-reserved category, began as a narrow exception. However, it has normalised a flexibility that the courts earlier sought to resist. The 50% ceiling now risks becoming a historical artefact.

Today, the reservation framework stands at a constitutional crossroads. Judicial innovation, legislative amendments and administrative practices have made the 50% doctrine increasingly elastic. Reservations are increasingly reflecting political strategy instead of constitutional discipline, resulting in electoral calculus subordinating social justice and stretching constitutional boundaries.

India’s fiscal design has titled unfavourably towards the Centre. This has not occurred through constitutional amendment, but via structured centralisation. Even though the Constitution contemplates cooperative fiscal federalism, the Centre’s ever-growing reliance on cesses and surcharges has substantially altered the revenue share balance with States.

As per Article 270, revenue from cesses and surcharges is distributed on the Finance Commission’s recommendations and it does not form part of the divisible pool. According to the Union Budget 2024–25, cesses and surcharges account for nearly 20% of the Centre’s gross tax revenue, yet remain excluded from the divisible pool. As a result, even though the Finance Commission may recommend that 41% of shareable taxes be devolved to States, the base itself continues to shrink. Nearly one-fifth of the Centre’s tax revenue is thus retained outside the sharing framework, centralising financial power without any formal constitutional change.

This practice has been repeatedly criticised. The Sarkaria Commission (1988) recommended cesses only to be limited to specific purposes. The Tenth Finance Commission (1995) advised that cesses should be subsumed into the divisible pool as proliferating cesses distort the intended division of resources. Similar concerns were also raised by the Punchhi Commission (2010). Despite such recommendations, the use of cesses and surcharges has been expanded sharply. From just over 10% of central revenue in 2010–11 to nearly one-fifth by 2025. The combination of non-binding Finance Commission recommendations and rising cess collections enables the Union to centralise resources while maintaining formal constitutional compliance.

Although Goods and Services Tax (GST) was introduced to create a unified and cooperative tax framework, the Centre continues to levy additional cesses, such as agriculture infrastructure and developmental cess, which are outside GST purview and not shareable.

The shrinking pool and GST compensation procedures frequently experiencing delays has intensified regional tensions. The Fifteenth Finance Commission’s shift from 1971 to 2011 census increased the weight accorded to population and income distance, reducing the relevance of tax effort and population control. Southern States dispute these recent approaches to horizontal devolution. They contend that it penalises fiscal efficiency and demographic discipline. It has generated fiscal stress and political friction, prompting calls for recalibration. There have been suggestions for increased weightage for efficiency based criteria and a more consultative role for States in shaping future Finance Commissions, akin to the GST Council model.

These fiscal asymmetries demonstrate how constitutional elasticity can be tested without formal amendment. No Article is rewritten, yet the spirit of federalism is weakened through fiscal manoeuvring. By altering revenue architecture rather than constitutional text, the Union centralises power while retaining the appearance of constitutional fidelity.

This pattern of Central predominance extends beyond finance into the constitutional realm, where the role of the Governor frequently becomes a site of institutional contestation between the Centre and the States. In India’s federal scheme, the Governor occupies a unique position. A constitutional head appointed by the President, yet required to act on the aid and advice of the State’s Council of Ministers. This dual design has always produced friction, but recent events have brought the strain into sharper focus. This friction does not arise from formal amendments, but from the manner in which constitutional discretion is exercised and reinterpreted through political practice.

In State of Tamil Nadu v. Governor of Tamil Nadu, the Supreme Court of India held that the Governor’s indefinite delay in granting assent to ten bills passed by the Tamil Nadu legislature was ‘illegal’ and ‘erroneous.’ 

Shortly thereafter, the President invoked Article 143 to seek the Court’s opinion on the powers of Governors and the President under Articles 200-201. During hearings, States argued that Bills cannot be kept in a ‘constitutional blackhole’ and that the Governor is bound to act within a reasonable timeframe. The Union government advanced a very different interpretation that strict timelines would straitjacket constitutional authorities and undermine the Governor’s discretion to protect the Constitution. 

The hearings before the Court exposed a deep interpretive divide between States and the Union. During hearings, States argued that Bills cannot be kept in a ‘constitutional blackhole’ and that the Governor is bound to act within a reasonable timeframe. The Union government advanced a very different interpretation contending that strict timelines would undermine the Governor’s discretion.

The Supreme Court’s advisory opinion, delivered in the Presidential Reference, sought to reconcile these competing claims. The Court declined to endorse rigid judicial timelines while reaffirming that the Governors cannot withhold assent indefinitely. For all intent and purposes, the strict discipline imposed in the State of Tamil Nadu v. Governor of Tamil Nadu was softened.

This sequence of judicial assertion, followed by executive-triggered reference, followed by a more flexible advisory opinion, demonstrates how constitutional constraints can be negotiated and recalibrated without formal amendment. A direct expression of the constitutional elasticity at work.

Taken together, these developments reveal a common constitutional pattern. The Constitution is not being reshaped through formal amendment, but through the steady accumulation of discretionary power exercised in practice. Whether through reservation policy, fiscal architecture, or gubernatorial authority, institutional balance is being recalibrated without textual change. It is in this space between constitutional form and political function that the elastic is most quietly and, most consequentially, stretched.

Nakashvir Singh Aulakh is an advocate practicing before the Supreme Court of India, the National Company Law Appellate Tribunal (NCLAT) and the High Courts of Delhi and Punjab & Haryana.

Bhoomika Nim is a fourth-year student at University School of Law and Legal Studies, New Delhi.