The Treatment of Constitutional Falsehoods by Public Officials
Kesavananda and the exercises of basic structure review that followed therefore implied that several provisions of the Constitution remained part of the text, but no longer represented practice or reality.
The constitutional text says that no Court has the power to the review a constitutional amendment. The Supreme Court’s decision in Minerva Mills[646] tells us that is plainly false. The text permits Parliament to exclude the jurisdiction of High Courts to review the validity of decisions of administrative tribunals. Yet, we learn from L Chandra Kumar[647] that any such attempt would be cast aside as unconstitutional. The text permits state governments to modify or annul the orders of certain administrative tribunals. The Supreme Court has, by denying state governments this power in practice, held exactly the opposite in Sambamurthy.[648]These falsehoods have not entirely escaped the attention of public officials. In fact, what is equally interesting as the falsehoods themselves is the manner in which they have been addressed at the bureaucratic level. The Ministry of Law and Justice of the Government of India frequently publishes updated versions of the Constitution.[649] Provisions of the Constitution that have been struck down as unconstitutional are generally (but not always)[650] footnoted, with a note indicating that the Supreme Court has declared the relevant provision, or some of its aspects, as ‘invalid’ or ‘unconstitutional and void’.[651]
To be sure, the footnotes themselves, having likely been written by bureaucrats in the Ministry of Law and Justice rather than enacted by a two-thirds majority of both Houses of Parliament, are extra textual commentary appended to the formal text of the Constitution. As a formal matter, they carry as much authoritative value as the ‘preface’, which is also written by a civil servant, and currently opens with this somewhat bland passage: ‘Constitution is a living document, an instrument which makes the government system work.
Its flexibility lies in its amendments’.[652] There is no assurance that other published versions of the Constitution will carry this commentary. Indeed, the version published by the ‘Constitute Project’,[653] and a prominent open access Indian legal website,[654] lack this commentary. Uninitiated readers that turn to these sources for the Indian Constitution would, even if briefly, be misled by the text of the Constitution.Nevertheless, it is worth noting that to enable the executive to add this commentary to the constitution still leaves it with considerable interpretive authority, especially considering that they publish what is likely to be considered the most ‘ official’ version of the Constitution of India that is available.
This footnoting system seems to follow on from the assumption, explained earlier, that Indian courts lack the power to strike a constitutional amendment out of the master-text. This is the reason for which when publishing the Constitution, the Government adds a footnote to the amended text indicating that it has been struck down, rather than leaving the unamended text intact with a footnoted explanation
that an amendment was unsuccessfully attempted. For the government to do the latter would effectively constitute an illegitimate re-amendment of the text of the Constitution.
These disjunctures between text and practice are only at the tip of the iceberg. Many other questions and concerns would arise were we to consider basic structure review in the context of India’s federal system. Each of the Supreme Court and the twenty-four High Courts have the jurisdiction to decide constitutional claims. Although the Supreme Court could have chosen to do so, it did not limit the power of basic structure review unto itself.[655] This means that any of the High Courts can, at least in theory, strike down any constitutional amendment at any time.[656] That decision would apply only within the confines of the state, which would mean that the operative text of the Constitution would look different in different states.
The Law Ministry’s footnote would presumably need to indicate that a provision has been struck down and is invalid only in its application to, say, Tamil Nadu and not its neighboring states of Kerala, Karnataka and Andhra Pradesh.The question that is then worth considering is how far this disjuncture between text and practice can go. The basic structure doctrine is generally characterized as a substantive limitation on Parliament’s powers to amend the Constitution. But in many ways, the limitations it imposes are procedural. The doctrine simply provides that Parliament cannot, relying on its power to amend the Constitution, change the identity of the Constitution. The Supreme Court has recognized that the doctrine has no application in the world of extraconstitutional change. Where Parliament or a new constituent assembly attempts to replace the existing Constitution with a new one, the ‘loss of identity’ theory is inapplicable. In fact, the very purpose of a replacement or revision is to change the identity of the Constitution.[657] Unlike an attempted change of identity masquerading as an amendment, this would be a transparent attempt at changing identity.
Following on from this proposition, we can arrive at the conclusion that the disjuncture between text and practice remains possible so long as Parliament is purporting to exercise its formal power to amend the Constitution under article 368. If, as the Court contemplated in Kesavananda,[658] Parliament attempted to use its amendment power to delete all provisions of the Constitution and the amendment is struck down, current practice would suggest that the Constitution would be printed as a blank document, with a footnote indicating that the amendment deleting all of its provisions had been struck down. Alternatively, if the amendment replaced all existing constitutional provisions with new ones and was later struck down, the new provisions would remain in the text, carrying a footnote that the amendment inserting them was struck down by the courts.
What would happen if Parliament attempted to amend the procedure for amending the Constitution itself? It is worth recalling that one of the constitutional amendments challenged in Minerva Mills involved an alteration to the amendment clause. However, this alteration addressed the question of whether courts had the power to review constitutional amendments, rather than what the procedure was for enacting such amendments in the first place. In that case, it is likely that although the new amending procedure would form part of the Constitution, amendments complying with the new amending procedure (but failing to comply with the old amending procedure) would not be incorporated into the constitutional text.
5