Basic Structure – VIII: Conclusion (of sorts)

Over the last few of posts, we have examined the basic structure doctrine as enunciated and developed by the Indian Supreme Court. There are two broad questions before us: first, from an external point of view, it is principally justified for the judiciary to impose substantive limitations upon the power of the Parliament to amend a written Constitution? The external question is further divided into two further questions: is there anything in the Constitution that supports this doctrine? And what – if it exists – is the philosophical justification for it? And secondly, from an internal point of view, is the manner in which these limitations have been imposed by the Court consistent and coherent with the principled justifications? In the process, we have discussed the two basic types of objections that have been raised against the doctrine and which, indeed, are standard objections against any Constitutional doctrine: first, that what the doctrine seeks to accomplish is morally illegitimate, as it violates the principle of our understandings of democracy; and secondly, as the doctrine itself lacks a firm Constitutional basis, it is constitutionally illegitimate.

These questions are important because, at the very least, it is undeniable that the basic structure doctrine confers wide-ranging powers upon the Court. And at the end of the day, such powers need to be justified on grounds firmer than the technical meaning of the word “amend”. They need to be justified upon the same grounds that justify our Constitution itself – popular sovereignty, republicanism, representative democracy, and so on.

We began by considering a non-majoritarian understanding of both democracy and individual rights, one that understands democracy itself as predicated upon the guarantee of basic rights as essential checks upon the powers of majoritarian institutions such as the Parliament. This naturally raised the question: who should determine and enforce these limitations? The logical answer is a non-majoritarian institution which, in our culture, is the Court.

We then considered a second justification that, unlike the substantive-rights argument, focuses on process. It holds that the framing of the Constitution was the culmination of a heightened, lengthy and sustained process of public engagement (through the freedom struggle) which, because of the depth of involvement of the people, is a “higher form of lawmaking” than the ordinary legislative and amendment processes – and that therefore, the values entrenched by that process can be preserved from change until another similar process comes along. In this context, we located Indira Gandhi’s actions in the 70s as a failed constitutional moment – one that attempted to make changes as far-reaching as the framing, but failed to have this vision accepted by the People.

Subsequently, we examined the textual, historical and structural bases given to the doctrine by the Supreme Court, and inquired whether the doctrine that emerged as a result of this was consistent with the principled justifications argued for earlier. It was found that but for the glaring example of federalism, both approaches yielded largely the same results. We focused on the manner the doctrine has been developed, i.e. the highly abstract formulation of basic features, and the Court’s refusal to provide a complete list of the same. We found that there were good reasons for holding that this practical operation of the basic structure is fully consistent with the principles that justify the doctrine in the first place, as it leaves the widest possible room for the legislature to operate, and also averts the nightmare of  inflexible rigidity.

And lastly, we considered a third approach to justification, one that seeks to avoid the pitfalls of both the substantive approach (an intuitive laundry-list of rights that just seem important) and the procedural approach (no ultimate constraints on the majority). We argued that if our system of government, a representative democracy, is to be truly effective, there must exist a structure of meaningful dialogue and deliberation, through which individual preferences are formed, modified, modulated and transformed, and ultimately expressed in public decisions. Meaningful dialogue itself presupposes a broad right of free speech, a rough parity between the participants (equality), an umpiring of the process itself (judicial review), participation (republican democracy) – that is, many of the basic features. The basic structure doctrine, then – which we saw is even implicated by the common law – provides a structural framework of constraint upon the democratic process, that makes it meaningful and worthwhile to engage in the process in the first place.

In summation, therefore, there exist arguments – perhaps not dispositive, but good arguments nonetheless – that the basic structure doctrine is  justified on the following three broad levels: first, its existence, as a matter of political and moral principle; secondly, its enforcement, in terms of the institutional authority (the judiciary) responsible for its enunciation and development; and thirdly, its application, that is, the manner in which the judiciary has applied it.

Therefore, we can – tentatively – conclude by submitting that the basic structure doctrine should not necessarily be viewed as a vague and imponderable chimera used by a tyrannical judiciary to arrogate supreme State power to itself, and as a weapon to destroy the foundations of democracy. It need not even necessarily be viewed as a necessary evil, a counter-majoritirian check to correct the worst excesses of democracy, but a regrettable restriction nonetheless. In the last analysis, the basic structure is – plausibly – an essential aspect of democracy itself, a set of constraints that makes democracy work.

Does that mean that everything is perfect? Of course not, because the workings of the basic structure are left to judges who are, after all, fallible human beings. So far, the judiciary has shown both restraint and wisdom in its handing of the basic structure doctrine, but of course, there is no guarantee that it will always be so. Yet if our judges occasionally go wrong, as they are bound to, if at times their decisions stultify the scope of Parliamentary action more than is necessary or called for, it is only the inevitable cost we must bear for vesting ultimate State power in fallible human beings. The basic structure doctrine seeks to achieve a fine balance between majoritarianism, democracy, separation of powers, and basic individual rights. By the very virtue of its complexity, its implementation can never be perfect; but then, as Aristotle understood so long ago, nothing ever can.

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