Further India: Kesavananda over time
Indulge me in stepping back in time to 1979, the year I first encountered the BSD through a reading of Kesavananda.11 At that time, the BSD was under intense discussion by constitutional scholars, even those having no immediate interest in the fate of the Indian constitution.
It was highly relevant that many constitutions across Asia had been heavily influenced by the Indian constitution, so that they represented a kind of “further India” in constitutional, as opposed to merely geographical, terms.[892] In retrospect, it seems as if constitutional lawyers spent as much time reading Kesavananda as they did speculating on its real meaning. In 1006 pages and 13 judgments[893] that split 7 to 6 in favour of BSD as the true interpretation of the Indian constitution, there was a great deal to speculate about. The speculation, which had taken six or seven years since the decision to circulate around the world, was very much about the nature of constitutional law itself. It drew into the discussion almost everything that was considered important - constitution-making and constituent power, the entrenchment of the constitution, constitutional amendments, the separation of powers, the nature of constitutional interpretation, the rule of law, fundamental rights,[894] [895] the primacy of parliament or the extent of legislative power, and of course the politics of the judiciary. At a more prosaic level, the question was whether the Indian Supreme Court had indulged in a kind of Indian solipsism that could only be explained (and perhaps even then rather controversially, in the light of six dissenting judgments) in Indian terms; or whether they had stumbled upon something really profound that challenged us to question why the BSD was not applicable in all cases, not just India's. Some were quick to dismiss it as the former, adverting to what they alleged to be the eccentric and idealistic nature of the Indian judiciary.[896]Others viewed it more favourably as interesting and persuasive, but only in the Indian context.
Others again viewed it as a kind of theory of everything that had been discovered in a single experiment. Kesavananda was, on this view, just about the most important case ever decided. But, let me emphasise, everybody was interested in how far this would go - did it have legs? The necessary or contingent nature of BSD was therefore implicated from the beginning of the debate.Of course, as we now see from the very interesting and well-written chapters in this volume, BSD has in fact spread quite widely, having been discussed further in many other jurisdictions.[897] BSD can no longer be dismissed as a mirage on the horizon, an ambitious judicial coup d'etat, or a kind of mishap in judicial understanding. It has circulated widely, as is evidenced in the present volume, and that cannot be ignored. But the question I address here is, how far can it properly go?
I argue that BSD is contingent, not necessary. I do not present here a detailed analysis of the cases in the relevant jurisdictions. That is expertly done in the various chapters in this volume. Rather, I offer a frame for thinking about the issue of transferability of the BSD. The question whether the BSD is “correct” is not, on my view, strictly an intelligible one, as its correctness cannot be judged at any level of generality. Indeed, the implication of discussing, as the papers here do, the politics of this issue, is that it is a matter of contingency rather than necessity. The politics, as politics go, cannot fail to differ across the globe even if constitutional law does not. Moreover, even if one assumed the inherent “correctness” of the BSD, this would still not answer the question, what is the precise content of that doctrine in this particular jurisdiction? To take an obvious example, the content of BSD would be different in a federal as opposed to a unitary jurisdiction. But if one examines the cases in Bangladesh, as Ridwanul Hoque does in this volume, one will see that even the particular structure of the judiciary is a contextual issue affecting the content of the BSD.[898] To take another example, Matthew Nelson, turning to the historical contingencies of basic structure jurisprudence in Pakistan, notes with specific reference to “religious issues” (for example, Article 62(1)(f)), that the role of “individual judges” and “the environment outside of the courtroom” was crucial.[899]
But 40 years after I published my first article, arguing for the applicability of the BSD in Malaysia,[900] the Malaysian courts appear to have come around to my view of the matter.
In fact, they never completely closed the door on BSD, which in retrospect was, I think, a wise thing to do, not because the courts need decades to consider the applicability of the BSD, but because content may come to be seen in a different light over time as new cases are litigated.[901] However, the matter is still not completely clear, as is indicated in a recent Federal Court case, which overrules some previous cases on this point.[902] This indicates that the BSD, although broadly discussed since Kesavananda, is still, nearly 50 years later, a matter of great difficulty and controversy.The discussion of breadth of applicability of the BSD also involves discussion of potential restrictions on its applicability. The discussion of Asian examples, with which I proceed, implies that Asian constitutional law and scholarship may add insights to be considered at the global level. Asia does not have to be a mere recipient or passive respondent; it can also be a major producer and analyser of general constitutional ideas.
On this topic of the BSD we now have a superb literature.[903] Yet, for several jurisdictions and types of constitutional order, we still lack careful and convincing analysis. Once we can figure out this issue of breadth consistently with the insights of this literature, we can decide how broadly applicable the BSD is. This is a decidedly important and (contrary perhaps to all appearances) very practical question. It decides whether a given court of final appeal or constitutional court can legitimately check the validity of a constitutional amendment against the implicit basic structure of the constitution, and rule it unconstitutional if it is deemed to destroy that basic structure. The BSD comes into play, one might say, when the chips are down, or when “constitutional hardball,” as Mark Tushnet puts it,[904] is the order of the day, throwing into relief the politics of the judiciary and the nature of judicial power. When constitutions are under attack, the BSD becomes critical as a last bastion or shield for the judicial power. In many cases, these days, we find that constitutional order is not always assaulted from the outside as it repeatedly was in the 1960s and 1970s, when colonels simply binned or “suspended” the constitution. Sometimes it resembles the sick rose that is eaten from the inside by the insidious work of what David Landau calls “abusive constitutionalism.”[905] In this sense, the scope of constitutional amendment becomes a really critical political question.
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