The Basic Structure Doctrine: Notes from Germany

The basic structure doctrine is too well-known to merit detailed explanation: briefly, ever since Kesavananda Bharati v. State of Kerala, it has been judicially determined that the power of Parliament to amend the Constitution does not extend to the power to “damage or destroy” its basic structure. A corollary of this argument is that certain aspects of the Constitution are unchangeable, immutable and so bound up with the fabric of the Constitution itself, that as long as the Constitution exists, they too must necessarily exist. While the Court has steadfastly refused to provide an exhaustive list of unamendable “basic feature”, it has variously held – inter alia – democracy, republicanism, secularism and judicial review to be part of the basic structure. At the risk of gross oversimplification, let us note the following important implications:

(1) India now follows the doctrine of strict constitutional supremacy, where even a supermajoritarian amendment procedure (the closest analogue to a constituent assembly) is limited in its power to change the Constitution.

(2) The basic structure is not to be found in any one provision, or combination of provisions, but is found in abstract principles that explain and justify the architecture of the Constitution as a whole (for example, a combination of Articles 14, 15, 19, 25, 26, 29 and 30) would, together, constitute the principle of secularism that cannot be reduced to either one or many of them in conjunction. As the name itself suggests, you arrive at basic features not through an examination of individual constitutional clauses, but through a structural analysis.

(3) The constitutional status of amendments is subordinate to the text of the original Constitution, because no part of the original Constitution can be subject to a basic structure challenge.

(4) The basic structure doctrine presupposes a certain unity and principled integrity – if only as a legal fiction –  that binds and holds together the original Constitution as a single, coherent document.

We can best evaluate some of these assumptions by examining another constitutional democracy that has a basic structure doctrine as well, but with a few interesting – and important – differences.  Article 79(3) of the German Basic Law states:

Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.”

Articles 1 to 20 contain our equivalent of Part III – human dignity, personal freedom, equality before law, freedom of expression, and so on.

In The Southwest State Case 1 BVerfGE 14 (1951), the constitutionality of the First Reorganisation Law, which sought to extend the term of state legislatures pursuant to Article 118 of the Basic Law, was challenged. The Court held that this violated both democratic government (from Articles 20 and 28 of the Basic Law) as well as Federalism (Articles 20, 19 and 28); consequently, it read Article 118 in a manner that did not extend to the extension of state legislative terms; crucially, however, the Court stated, in a lengthy paragraph that deserves to be quoted in full:

“An individual constitutional provision cannot be considered as an isolated clause and interpreted alone.  A constitution has an inner unity, and the meaning of any one part is linked to that of other provisions.  A constitution has an inner unity, and the meaning of any one part is linked to that of other provisions.  Taken as a whole, a constitution reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate. Artcle 79 (3) [the Eternity Clause] makes it clear that the Basic Law makes this assumption.  Thus, this Court agrees with the statement of the Bavarian Constitutional Court:  “That a constitutional provision itself may be null and void is not conceptually impossible just because it is a part of the constitution.  There are constitutional principles that are so fundamental and so much an expression of a law that has precedence even over the constitution that they also bind the framers of the constitution, and other constitutional provisions that do not rank so high may be null and void because they contravene these principles.” From this rule of interpretation it follows that any constitutional provision must be interpreted in such a way that it is compatible with those elementary principles and with the basic decisions of the framers of the constitution.” (c.f. Kommers & Miller, The Constitutional Jurisprudence of the Federal Republic of Germany)

Notice, immediately, the fundamental difference between German and Indian constitutional jurisprudence: it is accepted in both jurisdictions that the Constitution has a set of “overarching principles” that are grounded in – yet irreducible to, and conceptually prior to – individual provisions; and that these principles are derived from structural, holistic analysis of the Constitution as a unified document, projecting a coherent moral and political vision. Yet Germany takes this argument to its logical conclusion – if basic constitutional principles are not reducible to individual provisions, then conceptually, it is possible that an individual provision is not in consonance with that basic constitutional identity; this leads to the seemingly bizarre – yet logically quite defensible – corollary that “a constitutional provision can be unconstitutional.”

As far back as Golak Nath, however, the Indian Supreme Court rejected this argument. We have seen, however, that as a matter of logic, it cannot be faulted. What, then, justifies the contrary observations of the Court? Historically, we know that questions of legitimacy in the early years of the basic structure doctrine made the Court particularly wary of grounding the basic features in anything outside specific constitutional provisions (see, for instance, Mathew J.’s Holmes-ian observation in Indira Nehru Gandhi v. Raj Narain, denying that the basic structure was some “brooding omnipresence in the sky“). So the argument could be that the basic structure cannot – by definition – ignore any constitutional provision; rather, it is the combination of all the individual clauses that provide us with our architectonic basic structure.

The problem with this argument is that it stretches a legal fiction to the breaking point. There is no reason to imagine that all 395 articles of our Constitution actually come together in a seamless, structural unity – that could simply not be true as a matter of fact; in any event, that is a matter for investigation rather than a priori stipulation.

A valid question might be raised at this point: why structural unity at all? Why must we pick between the unpalatable alternatives of shoehorning 395 articles into some artificial moral whole, and holding provisions of the constitution unconstitutional? Indeed, in this powerful piece, Professor John Manning argues that imposing structural unity upon a Constitution (or a statute) could often amount to an interpretive betrayal by failing to respect the numerous compromises and bargains that went into producing the patchwork statute that eventually passes the all-important parliamentary vote.

Dworkin gives us one reason to strive for structural unity: recognising that the ultimate question here is one of political legitimacy, he argues in Law’s Empire that government can only claim citizens’ allegiance if it accords to each one of them “equal concern and respect”; and equal concern and respect is possible only if there is principled consistency in the laws that it frames and implements (for the full argument, see Ch. VII, Law’s Empire [“Integrity”] and the Preface to Freedom’s Law). We therefore have reason to depart from fact and accept the fiction of imputing a principled unity to our Constitution – because that is the only thing that justifies it as a political document that can claim legitimate political authority.

Accepting this to be true – and the basic structure doctrine does seem to need to accept some variant of the Dworkinian argument to justify its own existence – we are faced again with the untidy dilemma of the Indian Constitution. If both basic structure exists, and no provision of the Constitution is unconstitutional, we must accept a (in my mind, very unsatisfactory legal fiction) of a definitionally principled and unified Constitution.

There is, in addition, a further untidy corollary: as we pointed out in the beginning, this conclusion means that constitutional amendments are subject to the basic structure test, but constitutional provisions are not; that, in turn, can only be justified by according a higher place to the provisions of the original Constitution; above, we have argued that there is no logical warrant for doing so. Is there a justification in political morality? The only conceivable one might be that the original Constitution is treated as the authentic voice of “We the People“, whereas amendments – even though they require a supermajoritarian procedure – are, in the absence of referenda, one step removed from the people. Yet this argument is another one of those legal fictions that strains the imagination, especially given that the Indian Constitution (unlike, for instance, the American and the Brazilian) was not subject to popular ratification (no matter how sketchy or limited – it just wasn’t). Consequently, amendments – if anything – are more representative of “We the People” than the original Constitution! Unsatisfactory as it is, though, this seems to be the only justification that can even remotely whole water.

The basic structure doctrine has, of course, had a checquered and controversial life; it also rests upon – as I have tried to show in this post – a series of problematic and potentially contradictory assumptions. If only for constitutional clarity, it would be desirable if, in a future case, the Court was to develop a strong defence of the intellectual foundations of the doctrine.

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3 Comments

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3 responses to “The Basic Structure Doctrine: Notes from Germany

  1. Udit Bhatia

    Interestingly, I’ve been approaching this question in a similar comparative perspective in political theory through the German idea of ‘constitutional patriotism’. I think it can introduce interesting theoretical considerations on the notion of a basic structure. Plus it responds well to one of India’s important requirements, in response to which, the Germans developed this idea. (The construction of a ‘political’ identity based on mutual commitment to certain constitutional essentials as opposed to an ethnic solidarity). Also, happy birthday 🙂

  2. Pingback: Textualism vs Structural Analysis – or why the Court ought to Uphold Naz Foundation | Indian Constitutional Law and Philosophy

  3. This post got me re-reading some Canadian constitutional law – http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1643/index.do (paras. 49-82). At the end of the day, it’s not just about overall structural unity/coherence; basic unwritten constitutional principles are also justified by virtue of their importance to good government (and a just society) more generally.

    So we have additional reasons to accord certain provisions or underlying principles pride of place. And these need not be dependent upon any original or “we the people” foundation. The easy example: democratically made decisions may be undemocratic in their results. It makes good sense then for a constitution (written or unwritten) to preclude a majority (or even supermajority) from enacting any constitutional amendment aimed at disenfranchising one segment of the population.

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