, , ,

    Right from its origins in Kesavananda, the basic structure doctrine has been severely criticized on the following grounds: first, the Court has defined the basic features in a highly abstract manner; and secondly, it has refused to provide an exhaustive list of basic features. It is argued that the requirements of certainty and predictability in law-making require the Court to come out with an exhaustive and concrete list of basic features for the benefit of the Parliament. Let us examine this argument.

The Abstract Formulation of the “Basic Features” and the Problem of Statism

    Basic features such as democracy, secularism, the rule of law, judicial review, the separation of powers etc. are broad, “open-textured”, and open to varying and diverse interpretations. The high degree of abstraction with which the basic features have been set out has been identified as one of the main weaknesses of the doctrine. In the folds of the vagueness of basic structure, it is argued, lies limitless judicial power.

Yet a surgery of practice reveals that, far from vesting “limitless power” in the judiciary to strike down any and every amendment it pleases, the “vague” and abstract conceptualization of the basic features has, on the exact contrary, provided a wide scope for the legislature to operate, and limited the scope of judicial interference. A broad wording of basic features permits a whole host of interpretations to validly come within their ambit, and therefore expands the scope of permissible legislative action. For instance, Professor Sathe argues that the basic feature of “democracy” would permit as major and far-reaching a change as converting India from a Parliamentary to a Presidential form of Government, as the latter too is a “democracy.” The basic feature of “secularism” would permit the Government to decide upon a policy of complete separation of Church and State, or one of “equal respect.” This would not be possible if the basic structure was framed in more concrete and definite terms (or, to use Dworkin’s gloss on Hart – the basic structure is a series of “concepts“, and the legislature can work out specific “conceptions” of those concepts).

A brief review of Supreme Court judgments bears this out. In Raj Narain, Chandrachud J. used the “broad form of democracy known to the nation” to hold that the 39th Amendment, which made sweeping changes with regard to the legality of the elections of the Speaker and the Prime Minister, was not violative of the basic structure. The classic example, however, is that of the case of M.G. Badappanavar v. State of Karnataka, where a three judge bench of the Supreme Court gave a highly concrete formulization to the basic feature of equality, holding that Article 16(4A) of the Constitution did not allow roster point promotees to be given seniority over normal promotees. Soon after this, M.G. Badappanavar was effectively overruled by a Constitution Bench in Nagaraj, where it was observed that the “carry-forward” and the “catch-up rules” laid down in Articles 16(4A) and (4B) were mere rules of “service law jurisprudence”, and could not be elevated to the status of “Constitutional principles”. Thus, the basic structure challenge against Articles 16(4A) and (4B) was rejected. Again, in R.C. Poudyal v. Union of India, it was the much-maligned “vague” formulation of “democracy” that allowed the Court to uphold a Constitutional amendment departing from the “one-man-one-vote-rule” in Sikkim. Yet another instance is that of Kuldip Nayar, where the doing away of secret ballots for certain elections, and also domicile requirements for membership of the Council of States, were both upheld as being consistent with democracy.

There is an additional good reason for this. In Kesavananda (especially the minority), and in academic writings, the spectre of an un-amendable Constitution, the perils of “statism” and rigidity, and the need to respond to the changing times and requirements of the society have all been arguments used against the basic structure doctrine. The broad formulation of the basic features is a judicial attempt to give the legislature breathing room to operate, and address the fears of rigidity and non-responsiveness. Arguably, such an abstract formulation is the only way of preserving the balance, as Professor Joseph Raz argues, between the twin needs of “stability” and “change”.

     Therefore, the criticism that the “imprecise and elastic” formulation of the basic structure has made the judiciary “the most powerful organ of the State” would appear not to be borne out in practice. On the contrary, the abstraction of the basic features appears to be an exercise in judicial self-restraint and deference, keeping in mind concerns of the separation of powers and of constitutional rigidity.

 Illustrative, not Exhaustive

    It has been strongly urged that the Supreme Court should come forth with an exhaustive list of the basic features that is accepted by the Parliament, and included in the Constitution (see, e.g., the arguments in the essays featured in The Supreme Court versus the Constitution, Chopra ed., 2006). However, the Court has consistently held that it is far more desirable to examine each case on its own merits, and decide whether basic structure review is applicable. What principle could justify this?

The argument for exhaustiveness is based on the premise that the components of the basic structure are permanent and unchangeable. If this was true, then naturally, the Court’s refusal to provide a list would be unjustified. However, a crucial distinction needs to be made: the fact that certain principles and values are beyond the pale of the the legislature’s power to decide at any one moment, does not imply that these principles and values are themselves immune from change or modification over time. Recall that in Kesavananda and beyond, the Court did not say that the basic structure cannot be changed. It said that Parliament was not permitted to “damage or destroy” the basic structure. This is not mere hair-splitting, because if the basic features are structural features, that is, derived from the structural principles that undergird the Constitution, then a gradual, incremental change at the surface could, in certain cases, cause the structure to shift and change as well. In other words, the Constitution may be changed by slow degrees, provision by provision, new elements added to it, old provisions removed, and while no single amendment would alter the basic structure, over time we could have a rather different-looking Constitution, with a shift in the balance of the elements which currently constitute the basic features, and those that do not. And at that point, what would now be an amendment damaging or destroying the basic structure would not at that time be such, because the basic structure itself would have altered. And therein lies the key to the seemingly innocuous distinction between “change” and “damage or destroy“. By using the latter phrase, the Court ensures that it never closes the door entirely to intra-Constitutional change in the absence of a new Constituent Assembly. In other words, to put the matter paradoxically: at any given time t, the basic structure is unchangeable, but over time, it might prove to be mutable.

Let us also remember that no principle can operate in complete abstraction. Principles must be rooted, to at least some degree, in the existing condition of humankind, and specific prevailing societal conditions. In order to understand this better, recall H.L.A. Hart’s conception of the “minimum content of natural law.” While defending a theory of legal positivism, Hart nevertheless concedes that the conditions under which humankind exists makes it imperative that any law, as a prerequisite to its existence, must have certain minimal substantive content. For instance, human vulnerability requires that there must be some form of prohibition against the completely free and unrestrained use of violence. However, Hart adds that if there is a change in the basic human conditions which necessitates this minimal content, that content would change as well. For example, if physical vulnerability was to be eliminated by all human beings growing thick, impenetrable armour such as that possessed by land crabs, making it impossible for one to injure another, the “right to life” may lose its meaning. But Hart’s example, evidently, is limited to something extremely basic; surely, as we know, following Nietzsche and later scholars, the moral values that we take for granted (to take just one instance, brilliantly studied, the idea of “authorship“) have a specific genealogy, located both spatially and temporally, grounded within a set of social, economic and political conditions. Consequently, if these conditions themselves are radically transformed, so will our values.

The basic structure doctrine, then, is an expression of judicial – and, by extension, national humility: it recognizes that nothing is, or can be, absolutely permanent. Will this make a difference to how the next basic structure claim is decided in Court? Of course not. But constitutional law is not – and has never been – only about the individual case; it is also an expression of a polity’s deepest commitments. The basic structure doctrine reflects a commitment to certain core values that structure and define an open, democratic society. But the basic structure doctrine also acknowledges that the world may change in ways the present provides us no insight into, no matter how much wisdom or foresight we believe we possess, and that some day our present arrangements might seem as anachronistic and savage as American slavery and English feudalism seems to us now; or even if nothing changes, it could simply turn out, in the perspective of the wisdom of another age, that we have been wrong all along. As Oliver Cromwell said to the Synod of the Church of Scotland: “I beseech you, in the bowels of Christ, think it possible that you may be mistaken.” As relevant in 2013 as it was in 1650, the basic structure doctrine similarly maintains the possibility – however remote and outrageous it seems at the moment – that we might be mistaken, without compromising upon the strength of the commitment we have to our values.

In sum: what we have provided is an argument that not only is it in the very nature of the basic structure doctrine, that “basic features” must be both abstract and illustrative, but that both these characteristics provide vital and indispensable flexibility to the Court so that it may adequately respond to far-reaching societal changes, and prevent the basic structure from ossifying our Constitution into a fossilized, rigid anachronism. The alleged principal weaknesses of the basic structure doctrine – its vagueness and non-exhaustiveness – according to this argument, are the founts of its strength and, in part, the sources of its legitimacy.  The fears that judges will misuse these features to arrogate unbridled power to themselves are have not yet been proven right, and there is no reason to believe they will be.