[op-ed snap] Legitimacy of the basic structure

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Mains Paper 2: Constitution| Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

From UPSC perspective, the following things are important:

Prelims level: Basic knowledge of the basic structure doctrine.

Mains level: The news-card analyses the legitimacy of the basic structure doctrine vis-à-vis the Indian Constitution, in a brief manner.


Context

  • It has now been more than 45 years since the Supreme Court ruled in Kesavananda Bharati v. State of Kerala that Parliament’s power to amend the Constitution was not unlimited, that the Constitution’s basic structure was infrangible.
  • However, there have been grumblings over the rule’s legitimacy in certain quarters in response to challenges made to the recently introduced 103rd Constitutional Amendment, which provides for reservations based on economic criteria in government jobs and education.

Prevailing criticism

  • The common criticism is that the doctrine has no basis in the Constitution’s language.
  • It is argued that the phrase “basic structure”, finds no mention anywhere in the Constitution.
  • Its detractors also believe the doctrine accords the judiciary a power to impose its philosophy over a democratically formed government, resulting in a “tyranny of the unelected”.

Basic structure doctrine is legally legitimate

  • Some of this censure is a result of the Supreme Court’s interpretation of what the Constitution’s basic structure might be.
  • But the doctrine cannot be rejected altogether only because the judiciary sometimes botches its use.
  • For not only is the basic structure legally legitimate, in that it is deeply rooted in the Constitution’s text and history, but it also possesses substantial moral value, in that it strengthens democracy by limiting the power of a majoritarian government to undermine the Constitution’s central ideals.

Background

  • Ever since the Constitution was first amended in 1951, the true extent of Parliament’s power to amend the document has been acutely contested.
  • In 1960s, the Parliament had introduced the contentious 17th Constitutional Amendment.
  • Through this, among other things, a number of land reform legislations had been placed into the Constitution’s Ninth Schedule.
  • This meant that those laws, even when discriminatory, were immunised from challenge.
  • However, according to experts, Parliament was a creature of the Constitution and therefore it could not make changes that had the effect of overthrowing or obliterating the Constitution itself.

Questions to ponder

  • According to some experts, India hadn’t yet been confronted with any extreme constitutional amendment.
  • But jurists ought to be mindful of the potential consequences inherent in granting Parliament boundless power to change the Constitution.
  • How might we react, if the legislature were to amend Article 1, for example, by dividing India into two.
  • Could a constitutional amendment abolish Article 21 removing the guarantee of a right to life?
  • Or could Parliament use its power to abolish the Constitution and reintroduce the rule of a Moghul emperor or of the Crown of England?

Interpreting ‘amendment’

  • In Kesavananda Bharati, it was this formulation that shaped Justice H.R. Khanna’s opinion.
  • According to him, any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its Constitutional authority.
  • Yet, the limitation wasn’t as much implicit from a reading of the Constitution as a whole as it was evident from the very meaning of the word “amendment”.
  • According to him, what could emerge out of an amendment was only an altered form of the existing Constitution and not an altogether new and radical Constitution.

This interpretation has shown some depth for at least two reasons

(a) it represents a careful reading of the text of Article 368, and

(b) it delivers an attractive understanding of the moral principles that anchor the Constitution.

  • Article 368 grants Parliament the power to amend the Constitution, making it clear that on the exercise of that power “the Constitution shall stand amended”.
  • Therefore, if what has to remain after an amendment is “the Constitution”, naturally a change made under Article 368 cannot create a new constitution.
  • Such a construal is also supported by the literal meaning of the word “amendment”, which is defined as “a minor change or addition designed to improve a text”.
  • Hence, for an amendment to be valid, the constitution that remains standing after such a change must be the Constitution of India.
  • It must continue to possess, in its essence, those features that were foundational to it even at its conception.

Conclusion

  • Therefore, on any reasonable analysis it ought to be clear that the basic structure doctrine is not only grounded in the Constitution’s text and history, but that it also performs an important democratic role in ensuring that majoritarian governments do not destroy the Constitution’s essential character.
  • Constitutions are not like ordinary laws. Interpreting one is always likely to be an exercise fraught with controversy.
  • But such is the nature of our political design that the court, as an independent body, is tasked with the role of acting as the Constitution’s final interpreter.
  • The basic structure doctrine might be derived from the abstract but it does not mean it doesn’t exist within the Constitution.
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