Introduction
This chapter provides critical insights on politics in India over unconstitutional constitutional amendments (UCA). The Indian Constitution is not only one of the longest constitutional documents but is also one that has been amended quite frequently: 104 times in 71 years (January 1950 to December 2020).1 Article 368 of the Constitution empowers the parliament of India to amend the Constitution formally.2 In terms of their amendability, provisions of the Constitution can be divided into four categories.
First, the amendment of certain provisions3 is not treated as an amendment for the purpose of Article 368: such provisions can be amended by a “simple majority” and without following the procedure of Article 368. Second, a majority of constitutional provisions require a “special majority” - a majority of the total membership of each House of parliament and a majority of not less than two-thirds of the members of that House present and voting - for amendment. Third, some provisions (including Article 368) require a “special majority and ratification” by resolution passed by not less than one-half of the state legislatures.4 Fourth, although not expressly provided for or originally envisaged, certain provisions of the Indian Constitution are “unamendable” because of the basic structure doctrine developed by the Supreme Court. The last category is the subject matter of this chapter.However, the Indian Constitution has also been amended informally, for example, through judicial interpretation and ordinary legislation. As articulated in this chapter, constitutional law scholars should pay greater attention to such informal ways of amendment, because governments are using innovative tools to bypass limits on their power to amend the Constitution. Similar to what I have argued in the context of Hong Kong,[655] [656] any legislative, executive, or judicial action which has the “effect” of amending a constitution should be treated an amendment and be subjected to express as well as implied limitations on the power of amendment.
Such an effect, for example, will arise if an action contradicts or modifies an express provision, or overrides permissive constitutional silence on certain issues.[657]Article 368 (or any other constitutional provision) does not impose any explicit limits on the power of Indian parliament to amend the Constitution. Nevertheless, the Supreme Court of India found certain implied limits. While these limits were initially found in the unamendable nature of fundamental rights, the basic structure doctrine became the subsequent basis of unamendability.[658] In fact, the evolution and application of the basic structure doctrine since the early 1970s provides the axis around which the debate about UCA has unfolded in India both inside and outside courts. This chapter will analyse critically this debate as a two-strand political dispute over values embodied in the Indian Constitution. The first strand has been of the politics of supremacy between the executive-legislature and the judiciary as to who has the final say on what the Constitution means. This started as a battle over the right to property versus agrarian reforms aimed at achieving a social revolution, but extended to cover a wide terrain over the years, including the power to appoint judges. The second strand is the politics of legitimacy between the executive-legislature and “We, the people of India,” those members of the public who feel that the government - despite having a parliamentary majority - has no power to trample the spirit of the Indian Constitution. This strand has also involved the legitimacy of judicial interpretations or decisions.
This chapter will advance three main arguments. First, that greater attention should be paid to analysing informal amendments (e.g., judicial interpretations,
Constitutional politics in India 191 ordinal legislation, and constitutional conventions) of constitutions to ensure that governments are not able to do indirectly what they cannot do directly.
Second, the basic structure doctrine is perhaps more relevant today in view of growing democratic deficits, the rise of populism and nationalism, and traits of power concentration shown by political leaders all over the world. Third, the doctrine should be seen as part of a wider constitutional mechanism of checks and balances, rather than as a judicial brahmastra (a weapon with no defences) against the legislature and/or the executive. Seen in this context and considering how judicial interpretations too could amend a constitution, the doctrine should also bind courts.I will use two case studies to examine the politics around UCA. First, the 2015 Supreme Court decision in the Supreme Court Advocates on Record Association v Union of India* (the Fourth Judges case) which declared unconstitutional the Constitution (Ninety-ninth Amendment) Act and the National Judicial Appointments Commission Act 2014 (NJAC Act). This constitutional amendment sought to replace the collegium system of judges' appointment with a National Judicial Appointment Commission (NJAC) and thus reverse judicial supremacy in this arena. Second, the twin August 2019 President's Orders - the Constitution (Application to Jammu and Kashmir) Order 2019,[659] [660] and the Declaration under Article 370(3) of the Constitution[661] - coupled with the Jammu and Kashmir Reorganisation Act 2019 (JKR Act), which take away the special constitutional status and autonomy of Jammu and Kashmir conferred by Article 370 of the Constitution but without amending this provision. The second case study involves amending the Indian Constitution without an actual amendment. It is therefore contended that we should consider the term UCA in a broad sense to capture not only formal amendments but also laws or policies which have the effect of amending the Constitution.
I begin in Section 10.2 by unpacking various strands of constitutional politics in India and situate the evolution and application of the basic structure doctrine in this context. This section also analyses theoretical underpinnings of the basic structure doctrine and proposes that the doctrine should be considered part of a system of checks and balances. Section 10.3 then examines constitutional politics around two case studies - the second of which is a work in progress as the constitutional validity of government actions taking away the autonomy of Jammu and Kashmir is still pending before the Supreme Court. Since the second case study is an example of informal amendment, I also discuss what ought to be the scope of basic structure doctrine. Section 10.4 draws some common conclusions.
10.2