In the previous posts, we argued for certain independent principled justifications for limiting the power of popular majorities in democracies. In Kesavananda and subsequent cases however, the Supreme Court has always sought to provide a firm Constitutional basis to the basic structure doctrine. The basis used by the Court in turn, has had a direct impact upon the identification of specific basic features. It is therefore vitally important to briefly examine this Constitutional basis, and analyze whether its consequences by way of identifying basic features are in conformity with the principled justifications advanced before.
The following arguments appear in one form or the other, throughout the majority judgments. This is an attempt to synthesize them into an all-too-brief summarized account.
Justifications: Textual, Historical and Structural, and Chandrachud J.’s Test for Identification
The Kesavananda majority gave numerous reasons, grounded in established canons of constitutional interpretation, to justify the constitutionality of the doctrine. The minority provided an equal number of reasons to reject it. It is not my aim here to settle the question authoritatively. In fact, it would be rather presumptuous to claim to have found an indisputable solution to a problem that left a 13 judge bench divided! Here, I simply aim to demonstrate a few of the most important reasons (as identified by the Kesavananda majority) to make a strong, positive case in favour of the constitutionality of the doctrine. Perhaps aware that no one modality of argument was strong enough – or uncontroversial enough – to justify the monumental transformation that it was imposing upon the Indian constitutional landscape, the majority grounded its arguments in multiple considerations of text, structure, history and foreign constitutional precedent.
Textually, the strongest justifications are threefold: first, the literal, dictionary meaning of the word “amendment” means to improve upon, or make changes in something; it does not extend to completely destroying it; secondly, in various Constitutional provisions, the Constituent Assembly used the phrase “amendment by way of addition, modification or repeal”, whereas Article 368 used the word amendment simpliciter. This implied that the amendment of the Constitution under Article 368 was not envisaged to extend to repeal; and thirdly, that the phrases “this Constitution shall stand amended”, and “change in” as opposed to “change of” in Article 368 clearly meant the preservation of the basic identity of the existing Constitution (this argument is endorsed by Mr Seervai – see Seervai, p. 3143).
Historically, it was argued that the Constitution was the culmination of a long struggle against tyrannical and autocratic British rule. The protagonists of the nationalist movement were also the framers of the Constitution. They could not have intended that the ideals of democracy and secularism which they had fought so long and hard for – the ideals that, indeed, defined the movement and the entire framing process – could potentially be destroyed by succeeding Parliaments.
Structurally, it was argued that the proviso to Article 368, which provided for a more difficult method (the consent of half the State legislatures) to amend certain provisions, did not include fundamental rights, and other vital provisions such as Article 52. This led to the presumption that these provisions were meant to be beyond the power of amendment. The importance of the Preamble was also cited in this regard.
Lastly, the majority (that is, all except Khanna J.) relied upon various judgments from the higher Courts of Ireland, Canada, Australia and Ceylon to propound a theory of “inherent and implied limitations” upon the Parliament’s power to amend the Constitution. It argued that the position of the Parliament was subordinate to the Constitution; and the power delegated to it under the Constitution was checked by certain “implied limitations”, which prohibited it from using that power to destroy or subvert the Constitution itself (the thorny question of whether Khanna J.’s refusal to rely on implied limitations means that the doctrine was actually rejected 7 to 6 is one that we cannot go into here).
The strong Constitutional grounding of the basic structure doctrine led Chandrachud J., in Indira Nehru Gandhi v. Raj Narain, to emphatically reject any notion of the doctrine’s independence from the Constitution, and propound the now accepted test for identifying basic features: “to examine in each individual case the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country’s governance.” This definition, however, raises a fundamental question.
The Federalism Conundrum
In the previous posts, the basic structure doctrine was justified on certain principled grounds. Chandrachud J.’s test for identifying basic features, however, ignores these grounds completely, entrenching the basic features solely and exclusively within the text and structure of the existing Constitution. Is there a conflict between the two? In other words, is there a divergence between those constitutional concepts that ought to be unamendable (as a matter of democratic theory and principle), and those that actually are, in our Constitution?
Let us take the first justification that we discussed: the idea that certain basic rights ought to be placed beyond the power of majorities – or supermajorities – to affect. If this is so, then thus far, the potential conflict between justification and identification does not appear to have manifested itself in the application of the doctrine. Basic features such as equality, the right to life, the rule of law, democracy and secularism have been identified using Chandrachud J.’s test. These features are also part of the pantheon of the basic principles and fundamental human rights that were discussed in the posts before.
Yet there is, however, a notable exception. The Supreme Court has used the test to hold that “federalism” is part of the basic structure (see S.R. Bommai and Kuldip Nayyar). It is impossible to see what basic value or cherished principle federalism protects or preserves, that it should be placed beyond the Parliament’s amending power. By no means does it occupy the same pedestal as equality or the right to life, or even independent judicial review (notwithstanding Mr Seervai’s argument that at the time of the framing, it was crucial for the integrity of the nation – see Seervai, p. 3148). Nevertheless, federalism is now undisputedly part of the basic structure.
But if the basic-rights argument cannot justify why federalism is part of the basic structure, our Ackermanian conception of higher-lawmaking, that we discussed in the last post, certainly can. We are now in a position to note a crucial distinction between our two justifications for the principled legitimacy of the basic structure doctrine (and one that will become relevant subsequently): the basic-rights argument is essentially content-based: it grounds the legitimacy of the basic structure in the nature and character of important substantive values. The higher-lawmaking argument, on the other hand, is process-based: it accords legitimacy to whatever substantive result is arrived at through the process of higher lawmaking. The framing process accorded tremendous important to (asymmetric) federalism? No problem, says the Ackermanian. Federalism can take its place along with all the other substantive values that form part of the basic structure, because it too emerged out of a process of higher lawmaking, that protects it from damage or destruction except by another process of a similar character.
We are therefore faced with a conundrum. The basic-rights argument must condemn a part of the judicial practice as a mistake. The Ackermanian argument does not suffer from this infirmity, but then again, the Ackermanian argument would condemn no substantive principle as a mistake, as long as it emerged out of the correct process. Yet evidently, there is a conflict here, and no obviously correct answer. I will suggest, subsequently, that neither the basic-rights framework, nor the Ackermanian higher lawmaking model can serve as a sufficiently plausible normative justification for the basic structure, but for now we can see how the justification that we finally accept will depend explicitly on our own notions about the importance of coherence and unity, and substance and process.
A Matter of Pragmatism: Identifying the Basic Features
If the basic-rights theory is to remain convincing, however, it must address the claim that the Court lacks a coherent philosophy for the doctrine it has created and propounded, and one that is consistent with separation of powers. One possible way of addressing this objection is to make the – in my opinion, correct – argument that the basic structure doctrine can be best understood only as a product of the political climate in which it was born.
As Professor Granville Austin points out, Kesavananda was an attempt by the Indira Gandhi regime to overturn the Golak Nath decision through years of “packing the Court.” (see G. Austin, Working a Democratic Constitution 265) Furthermore, Raj Narain and Minerva Mills, which crystallized the doctrine, were decided during and soon after the notorious Emergency imposed by Mrs. Gandhi. In the prevailing political climate, therefore, the judiciary had no choice but to give as strong a basis in positivist Constitutional law as it could to the doctrine. As history shows, Mrs. Gandhi did her best to overturn Kesavananda through supercession of judges and the review procedure; and there were also hopes that Raj Narain would ignore the doctrine altogether. It is highly unlikely that the doctrine would have survived had the judges based it on a theoretical conception of democracy and the inalienability of basic human rights. The formulation of the doctrine therefore, should be understood as an attempt by the Supreme Court to achieve a principally justified goal through strongly pragmatic methods, while sustaining its own legitimacy as the ultimate interpreter of the Constitution (indeed, Professor Marneffe has argued that maintaining the legitimacy of the Court is itself an independent constitutional principle that the Court ought to keep in mind while adjudicating hard constitutional cases). We are fortunate that this method has, in at least many cases, yielded results that are consistent with the principle.
Whether this argument is a sufficient defense of the basic-rights principle is, again, a matter for individual judgment.