Constitutional politics and the basic structure doctrine

10.2.1 Politics over vision and objectives of the Constitution

The drafters of Indian Constitution tried to create a founding document which balances competing interests of diverse groups of people, preserves diversity as well as the spirit of inclusiveness, and provides a pathway for “social revolution” by bringing transformative changes to economic, political, social, cultural, and religious practices.^[662] The Preamble of the Constitution outlines some of these goals.

to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation.^[663]

As readers will note below, many sites of constitutional politics in India have revolved around some of these objectives outlined in the Preamble.^[664] For exam­ple, one can analyse affirmative action provisions for Scheduled Castes, Scheduled Tribes, and other backward classes of citizens in terms of social “justice” and substantive “equality.”^[665] At the same time, we can examine affirmative action laws and policies in terms of the politics of supremacy (whether legislative/executive is the best judge of these transformative measures or courts should put certain limits on the substantive equality agenda) as well as the politics of legitimacy (whether the government measures are merely a “vote bank tactic” or meant to bring about real change in the situation of historically disadvantaged groups). Another example of constitutional politics is provided by agrarian reforms aimed at the redistribution of land which were underpinned by the quest for economic justice and equality of status and opportunity.

Constitutional politics in India 193 government or the judiciary should be the final arbiter of the appropriateness of the tools employed to bring social revolution.^[666]

One can find several other similar sites of constitutional politics in India which can be analysed from the supremacy or legitimacy angle (or from other angles for that matter).^[667] For instance, the rise of judicial activism around public inter­est litigation, especially in the post-emergency era, could be seen in terms of the Supreme Court not only trying to regain its public legitimacy, but also asserting its supremacy in public governance and upholding constitutionalism.^[668] In fact, by adopting this approach, the judiciary can claim itself to be “an arm of social revolution.”^[669] Similarly, the contours of religious freedoms, the meaning of secu­larism, and the enactment of the Uniform Civil Code have been a prominent site of politics of legitimacy, as critics have questioned whether certain laws and poli­cies were really driven by Sarva Dharma Samabhava (equal treatment of all reli­gions) or driven by a desire to appease religious minorities for political gains.^[670] In more recent years, India under Prime Minister Modi is embarking on the politics of Hindu nationalism in the name of national unity and integrity,^[671] which raises questions about the legitimacy of some of the measures taken by his government even if supported by the parliament and acquiesced by the Supreme Court.

The two case studies selected in this chapter can also be analysed in terms of the politics of supremacy and/or legitimacy. For example, the battle of supremacy has been at play in the power of the President to appoint judges of the Supreme Court and High Courts (Articles 124 and 217) and to transfer judges of High Courts (Article 222) as well as the four cases related to the exercise of this pow­er.^[672] As discussed in detail in Section 10.3, the Supreme Court wrested the power of judicial appointments from the executive in S C Advocates on Record

Association v Union of India²¹ (the Second Judges case) through a judicial inter­pretation.

The second case study (taking away the special status of Jammu and Kashmir under Article 370) again demonstrates the supremacy of the central government over states under the federal system established by the Indian Constitution. The Supreme Court's slow reaction to dealing with the constitutionality of this gov­ernment action as well as the detention of many political leaders indicates the judiciary's willingness to concede supremacy - at least for now - on this matter to the executive. On the other hand, in the absence of any consultation with people, political leaders, or institutions of Jammu and Kashmir, the central government tried to derive legitimacy for its action in narratives of economic development and national integration.^[673] [674] Serious questions arise about the legitimacy of the govern­ment actions as well as the underpinning legitimacy narratives.

10.2.2 The basic structure doctrine

The origin, evolution, and application of the basic structure doctrine in India could also be seen in terms of the politics of supremacy and legitimacy.^[675] The Supreme Court relied on the doctrine to gain supremacy over the executive­parliament and strike down certain constitutional amendments which “sought to overturn judicial decisions which the regime in power claimed obstructed social justice and the nation's progress.”^[676] One can also see the politics of legitimacy at play: the legitimacy of the parliament's exercise of its amendment power (differ­ent from its legislative power) as well as the legitimacy of the Supreme Court's power to invalidate a constitutional amendment when no express limitations are imposed by the Constitution.

In 1973, the Supreme Court in Kesavananda Bharati v State of Kerala^[677] held that the parliament does not have the power to amend the basic structure of the Constitution.^[678] By doing so, “the Court assured for itself, a new and impregnable role in the constitutional politics of India”^[679] and created what Albert and Oder describe as “informal unamendability.”^[680] This decision “results in a co-sharing with Parliament of constituent power by the Apex Justices.”^[681] The roots of such implied limits on the parliament's amendment power in the form of a basic struc­ture (or certain basic features) could be traced to Justice Mudholkar's dissenting judgment in Sajjan Singh v State of Rajasthan:

[The Constituent Assembly] formulated a solemn and dignified preamble which appears to be an epitome of the basic features of the Constitution. Can it not be said that these are indicia of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution?^[682]

Then came the majority judgment in Golak Nath v State of Punjab,^[683] which held that the parliament could amend any provision of the Constitution but not fun­damental rights, because a constitutional amendment is “law” for purpose of Article 13 of the Constitution.^[684] In other words, unlike earlier cases, the majority in Golak Nath saw no distinction between the parliament’s legislative power and constituent power.^[685]

Both Golak Nath and Kesavananda Bharati imposed limits on the parlia­ment’s amendment power. However, the limits under the former were narrow and specific (only fundamental rights provisions were unamendable), while flex­ible and open-ended under the latter. Moreover, the basic structure doctrine was invoked to justify implied or inherent limitations on the amendment power only in the latter case (Kesavananda Bharati). Unlike the Golak Nath’s majority, the majority in Kesavananda Bharati accepted a distinction between a constitu­tional amendment and ordinary legislation.

It is worth noting that the Court did not place limits on the parliament’s amendment power in initial years. For example, in Sankari Prasad v Union of India,^[686] the Supreme Court ruled that there are no limits on the parliament’s constituent power and consequently, the parliament can amend any provision of the Constitution. This view was affirmed by the majority in Sajjan Singh v State of Rajasthan,^[687] just two years prior to the Golak Nath decision. What explains this major shift in the Court’s attitude? The end of Nehru’s era in May 1964 might have provided the Supreme Court an opening to assert its supremacy, because the Court appears to be more deferential to powerful prime ministers. The other reason may be that the judiciary got a sense of executive authoritarianism in the making^[688] and thus started preparing for what was to unfold later.^[689] The doctrine has become an integral part of Indian jurisprudence since its application by the Court in Indira Nehru Gandhi v Raj Narain,^[690] a case decided during the emer­gency, and subsequent cases decided in normal times.^[691]

How can we justify the basic structure doctrine in a functional democracy? Is it anti-democratic or could it be defended as a counter-majoritarian bulwark to preserve the essence of democracy? Scholars and lawyers have debated these ques­tions. Commenting on the application of the basic structure doctrine to ward off abuses of power during emergency in India, Ramachandran highlights the para­doxical nature of the doctrine: “An anti-democratic doctrine had to be used to

Constitutional politics in India 197 prevent the murder ofdemocracy by a grotesque mutilation of the Constitution.”^[692] Writing in 2000, he argues that the doctrine “proceeds upon a distrust of the democratic process,” but in effect it “stifles democracy” and therefore “must now be buried.”^[693] Nariman notes that the doctrine “upset the balance-of-powers in the Constitution” and that by “propounding ‘the basic structure theory', the guardians of the Constitution (it was said) had at once become guardians over the Constitution.”^[694] Writing much earlier in 1974, Tripathi had observed in relation to the ruling in Kesavananda Bharati:

It will be some irony if a Court so severely concerned with saving the “essen­tial elements” or the “basic structure and framework” of the Constitution should end up with destroying the most essential and basic principle of consti­tutional law, namely, that the restrictions, if any, on the power of the amend­ment of a sovereign constitution can be imposed only by the Constituent Assembly or its nominee, the amending authority, both of whom operate upon the Constitution, and not by a Court which must operate under the Constitution and subject to it.^[695]

On the other hand, Austin justified the doctrine as some constitutional amend­ments tried to destroy the seamless web of protecting national unity and integ­rity, establishing the institutions and spirit of democracy, and fostering a social revolution.^[696] Krishnaswamy goes further and defends the basic structure doctrine as an independent implied power of judicial review which covers all types of state action (not merely a constitutional amendment).^[697] Roznai has also countered many theoretical, practical, and textual objections raised against the unamend­ability of certain constitutional provisions,^[698] something which the basic structure doctrine embodies.

I will argue that the doctrine of basic structure should be treated as part of a wider system of checks and balances in times with serious democratic deficits in all institutions of governance. Nariman, a leading Indian lawyer, in his autography wrote: “One of the lessons of the Internal Emergency (of June 1975) was not to rely on constitutional functionaries. These functionaries failed us - ministers of government, members of Parliament, judges of the Supreme Court, even

the president of India.”^[699] Nariman's assessment is relevant in non-emergency times too. For example, although Prime Minister Modi has not declared any internal emergency, his governance traits are not dissimilar to those shown by Indira Gandhi before or during the infamous Emergency. Modi has practiced a highly centralised and opaque model of decision making with almost no effective checks on his powers from any source (internal or external to the executive).^[700] The autonomy of independent institutions has been undermined, opposition par­ties have been systematically dismantled both inside and outside the parliament, most media outlets have shown appetite for self-censorship or buying uncritically the government narrative, and even the judiciary has not shown the courage to question many controversial government decisions.^[701] In such a scenario, the doctrine of basic structure should be relevant in controlling the propensity of the government to destroy the core constitutional values embodied in the Indian Constitution.

Critiquing the reasoning behind the basic structure doctrine in Kesavananda Bharati, Tripathi contended that “the argument that Parliament does not rep­resent the people is a dangerous argument, because it questions a fundamental assumption not only of our Constitution but of the democratic or representative form of government.”^[702] There is some merit in this argument: if the parliament - comprising representatives of people elected in a democratic election - enacts a law (such as the JKR Act or the CA Act discussed below) or passes a constitu­tional amendment for that matter, this should be regarded as legitimate expres­sion of the people's will. Such an argument, however, ignores the realities of parliamentary democracy in which the executive (being the leader of a political party with a majority in both houses) controls the parliament with little scope for any critical scrutiny, debate, or dissent.^[703] If the Supreme Court interprets and applies the basic structure doctrine not in a self-serving manner but as the guardian of core values embodied in the Constitution, the doctrine may in fact be defended as an exercise of power on behalf of “We, the people of India” as the source of the ultimate constituent power.

10.3