Conclusion
The basic structure doctrine is easily the most widely recognized, widely acclaimed, and widely criticized, aspect of Indian constitutional law. Yet, amongst a rich literature on democracy and the separation of powers, one aspect of the Kesavananda case and subsequent decisions remained forgotten.
What impact would basic structure review have on the text of the Constitution? Over the years, the Supreme Court has struck down multiple provisions of the Constitution. These provisions have remained part of the text, producing disjunctures between the constitutional text and constitutional practice.By considerably extending the contours of the basic structure doctrine, the Fourth Judges Case exacerbates the potential for disjunctures between text and practice. Bureaucracies find solutions where constitutional lawyers and judges do not- for the government’s published version of the Constitution now contains over a dozen footnotes indicating which provisions of the Constitution have been struck down by the courts. Yet, these footnotes lie outside the text of the Constitution. The constitutional falsehoods precipitated by the basic structure doctrine raise concerns from the rule of law and place a premium on constitutional interpretation outside of the courts. The citizens of each generation must be able to ‘figure out what the Constitution’s promises mean for themselves’.[688] The continuing application of the basic structure doctrine, a la the Fourth Judges Case, only makes the the marginalization of citizens in the interpretive project increasingly likely.
Acknowledgement I am grateful to Mihika Poddar of the West Bengal National University of Juridical Sciences, Kolkata, for research assistance.