Legitimacy of the basic structure Legitimacy of the basic structure By Suhrith Parthasarathy It has now been more than 45 years since the Supreme
Court ruled in Kesavananda Bharati v. State of Kerala
that Parliament's power to amend the Constitution was
not unlimited, that the Constitution's basic
structure was infrangible. But as entrenched as this
doctrine might now be, it remains, to some, a source
of endless antipathy. There have already been
grumblings over the rule's legitimacy in certain
quarters in response to challenges made to the
recently introduced 103rd Constitutional Amendment,
which provides for reservations based on economic
criteria in government jobs and education.
Unwarranted censure
The common criticism is that the doctrine has no
basis in the Constitution's language. The phrase
"basic structure", it's argued, finds no mention
anywhere in the Constitution. What's more, beyond its
textual illegitimacy, its detractors also believe the
doctrine accords the judiciary a power to impose its
philosophy over a democratically formed government,
resulting in something akin to what Union Minister
Arun Jaitley once termed as a "tyranny of the
unelected".
Unquestionably, some of this censure is a result of
the Supreme Court's occasionally muddled
interpretation of what the Constitution's basic
structure might be. But to reject the doctrine
altogether because the judiciary sometimes botches
its use is to throw the baby out with the bathwater.
For not only is the basic structure canon legally
legitimate, in that it is deeply rooted in the
Constitution's text and history, but it also
possesses substantial moral value, in that it
strengthens democracy by limiting the power of a
majoritarian government to undermine the
Constitution's central ideals.
Ever since the Constitution was first amended in
1951, the true extent of Parliament's power to amend
the document has been acutely contested. But the
dangers inherent in granting untrammelled power to
the legislature were perhaps best brought out in a
lecture delivered by a German professor, Dietrich
Conrad.
(To be continued)
(From yesterday's issue)
His talk "Implied Limitations of the Amending Power",
delivered in February 1965 to the law department of
the Banaras Hindu University, came at an especially
fraught time. Only months earlier Parliament had
introduced the contentious 17th Constitutional
Amendment. Through this, among other things, a number
of land reform legislations had been placed into the
Constitution's Ninth Schedule. This meant that those
laws, even when discriminatory, were immunised from
challenge.
But it wasn't the merit of the amendment that
troubled Conrad. He was concerned with the suggestion
that Parliament's power to alter the Constitution was
plenary. Influenced by the theoretical scholarship of
the jurist Carl Schmitt, Conrad believed that even if
a legislature were bestowed with the widest of powers
to amend the Constitution, its authority was always
subject to a set of inherent constraints. Parliament,
he contended, was, after all, a creature of the
Constitution. It could not, therefore, make changes
that had the effect of overthrowing or obliterating
the Constitution itself.
As A.G. Noorani has pointed out, Conrad was affected
by his own country's history. In Germany, the
virulent end brought to the Weimar Republic by Nazism
had meant that when the country adopted its Basic Law
in 1949, it quite explicitly placed checks on the
legislature's powers. This included a bar on
lawmakers from amending those provisions of the Basic
Law that concerned the country's federal structure,
that made human rights inviolable and that
established constitutional principles such as the
state's democratic and social order.
Questions to ponder
In his lecture, Conrad said India hadn't yet been
confronted with any extreme constitutional amendment.
But jurists, he warned, ought to be mindful of the
potential consequences inherent in granting
Parliament boundless power to change the
Constitution. How might we react, he wondered, if the
legislature were to amend Article 1, for example, by
dividing India into two. "Could a constitutional
amendment," he asked, "abolish Article 21," removing
the guarantee of a right to life? Or could Parliament
use its power "to abolish the Constitution and
reintroduce… the rule of a Moghul emperor or of the
Crown of England?"
Although it was delivered to a limited audience, M.K.
Nambyar, who was to soon lead arguments in the
Supreme Court against the 17th amendment in
Golaknath's case, was alerted to Conrad's urgings.
Devoid of any direct precedent from other
Commonwealth nations, where an amendment had been
subject to the rigours of judicial review, Nambyar
thought the German experience carried with it a set
of important lessons. Were Parliament's powers
considered infinite, he argued, the parliamentary
executive can be removed, fundamental rights can be
abrogated, and, in effect, what is a sovereign
democratic republic can be converted into a
totalitarian regime.
Interpreting 'amendment'
The court, in Golaknath, didn't' quite feel the need
to go this far, but, ultimately, just four years
later, in Kesavananda Bharati, it was this
formulation that shaped Justice H.R. Khanna's
legendary, controlling opinion. While the judge
conceded that it wasn't possible to subscribe to
everything in Conrad's arguments, this much, he said,
was true: "Any amending body organized within the
statutory scheme, howsoever verbally unlimited its
power, cannot by its very structure change the
fundamental pillars supporting its Constitutional
authority." Yet, the limitation, wrote Justice
Khanna, wasn't as much implicit from a reading of the
Constitution as a whole as it was evident from the
very meaning of the word "amendment". According to
him, what could emerge out of an amendment was only
an altered form of the existing Constitution and not
an altogether new and radical Constitution.
This interpretation, as Sudhir Krishnaswamy has
shown, in some depth, in his book, Democracy and
Constitutionalism in India, is compelling for at
least two reasons. First, it represents a careful
reading of the text of Article 368, and, second, it
delivers an attractive understanding of the moral
principles that anchor the Constitution. Article 368
grants Parliament the power to amend the
Constitution, making it clear that on the exercise of
that power "the Constitution shall stand amended".
Therefore, if what has to remain after an amendment
is "the Constitution", naturally a change made under
Article 368 cannot create a new constitution. Such a
construal is also supported by the literal meaning of
the word "amendment", which is defined as "a minor
change or addition designed to improve a text".
Hence, for an amendment to be valid, the constitution
that remains standing after such a change must be the
Constitution of India; it must continue to possess,
in its essence, those features that were foundational
to it even at its conception.
Now, consider Conrad's extreme example: were an
amendment to be introduced relinquishing control over
India to a foreign power, would it not result in the
creation of a constitution that is no longer the
Constitution of India? Would not such an amendment
strike at the root of the Constitution's Preamble,
which, in its original form, established India as a
sovereign democratic republic? On any reasonable
analysis it ought to, therefore, be clear that the
basic structure doctrine is not only grounded in the
Constitution's text and history, but that it also
performs an important democratic role in ensuring
that majoritarian governments do not destroy the
Constitution's essential character.
We must remember that constitutions are not like
ordinary laws. Interpreting one is always likely to
be an exercise fraught with controversy. But such is
the nature of our political design that the court, as
an independent body, is tasked with the role of
acting as the Constitution's final interpreter, with
a view to translating, as Justice Robert H. Jackson
of the U.S. Supreme Court once wrote, abstract
principles into "concrete constitutional commands".
It may well be the case that the basic structure
doctrine is derived from the abstract. But that
scarcely means it doesn't exist within the
Constitution.
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