Introduction

Constitutional law is amongst the first subjects that Indian law students are taught. High school students across the country learn about the Indian Constitution, which is often prescribed in the academic syllabus.^[605] Most Indians receive a healthy dose of constitutional invocation in newspaper articles, television debates and political speeches.

¹See, for eg, Indian Certificate of Secondary Education History and Civics Syllabus ; West Bengal State Board Class 10 History Syllabus. constitution (and often, the preamble with which it opens) comprises the first and most important reference point for those attempting to grasp Indian constitutional law.

It is well known that every written constitution is supplemented by important unwritten principles: the constitutional law of all nations (whether they have ‘big-C’ or ‘small-C’ constitutions)^[606] consists of some combination of the written and unwritten. Judges interpret the abstract language of written constitutions,^[607] and speak where the text remains silent.^[608] As a codified constitution grows older, it forms less and less of the constitutional law of a nation, having been supplemented by judicial decisions and political practice over time.^[609] These claims are now rela­tively uncontroversial in constitutional discourse.

But what happens when a written constitution diverges from the constitutional law to such an extent that it is not just a ‘radically incomplete statement’ of the higher law,^[610] but to go a step further, is positively misleading? The Indian Supreme Court’s body of case law on unconstitutional constitutional amendments (otherwise known as the ‘basic structure doctrine’) raises precisely these questions, for the Court assumed the power to hold provisions that have been incorporated into the constitutional text, following the textually prescribed amendment procedure, as unconstitutional.

Ever since it came into being in 1973, the doctrine has simultaneously become the hero and villain of the Indian constitutional experiment.^{[611] [612] It raises significant questions involving the separation of powers, popular sovereignty and the role of the judiciary in a constitutional democracy.}

In its operation over the last four decades, the doctrine has extended the dis- junctures between constitutional text and constitutional practice. The outcome is that many constitutional provisions plainly mis-state how the Constitution works in practice. The Indian Supreme Court’s decision in the Fourth Judges Case of 20158 redefining the basic structure doctrine exacerbates these disjunctures and establishes the potential for more significant disjunctures going forward. The chapter addresses how these disjunctures between text and practice have arisen, the attempts to redress them, and what these disjunctures mean for constitutional interpretation outside of the courts.

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