Let us now consider some possible arguments in defense of the basic structure doctrine. I will commence with political and philosophical defenses – are there principles that justify substantive limitations upon parliament’s amending authority? In what follows, I list various potential principles. (While I do not necessarily agree with them, I will nonetheless try to state them in their strongest form.)
The most common argument against the doctrine is that it gives unelected judges the power to restrict the activity of an elected legislature, thus encroaching upon its activity, and violating the doctrine of separation of powers. Furthermore, it goes against democracy, majoritarianism and popular sovereignty, as democracy mandates that the final say on all issues concerning society (including a bill of rights that constrains the very actions of the majority) must be left to the majority of the people, acting through their elected representatives (see, e.g., R. Ramachandran, The Supreme Court and the Basic Structure Doctrine, in Supreme But Not Infallible, and his review of Professor Sudhir Krishnaswamy’s book here).
To this, four separate responses may be made: first, even in a democracy, there are certain decisions which, in principle, must not be left to the majority; secondly, in practice, the degree of representation and public support political parties in power enjoy in modern democracies is questionable; thirdly, the framing of the Preamble to the Constitution suggests that it is meant to resemble a social contract, where the people have the power to reserve certain rights to themselves; and fourthly, India follows a model of Constitutional sovereignty, which places limits upon ordinary legislative power.
Democracy and Majoritarianism: The Argument from Principle
The core of the basic structure debate revolves around a dispute about the true meaning of “democracy.” Opponents of the doctrine claim that the doctrine is “undemocratic” on the ground that it places limitations on the powers of the political majority (acting through the legislature). The unarticulated premise of this argument is that democracy must necessarily equal the majority will. Therefore (the argument proceeds) a violation of the latter automatically means a violation of the former, and hence is undesirable. (It is crucial to note here that arguments such as equal political participation or promoting efficiency, are arguments about the ends served, and not features intrinsic to, majoritarianism.)
The counter-argument from democracy would have it that this argument misunderstands the true nature of democracy, as well as the purpose of the basic structure doctrine. If a particular conception of governance is to be defended as good and desirable, it must be shown that either that it possesses certain intrinsic values that we consider basic or fundamental, or that it serves or promotes such values and ends. It is clear that majoritarianism does not possess any intrinsic qualities of this nature (recall Isiah Berlin’s acute observation that oppression is oppression, whether it is imposed upon me by one person or by ninety-nine out of a hundred). Professor Dworkin therefore argues for redefining “democracy” to mean a system of government where all citizens are treated with “equal concern and respect” (because it is only under such a regime, which grants everyone equal concern and respect, that an individual can legitimately be treated as a joint-author of all laws, including those that go against one’s interest, and thus be expected to obey them). By using a concept of “moral membership in a community” (a person is a moral member when every community decision treats him with equal concern and respect, and this, in turn, happens when he is provided a voice in, a stake in, and an independence from, the collective), Dworkin demonstrates how the most popular arguments in favour of majoritarianism, i.e., it promotes liberty, equality and community feeling, are fundamentally misplaced. Majoritarian institutions are to be upheld as long as they serve the democratic objective of fulfilling moral membership for all individuals, and not simply by virtue of being majoritarian institutions. In most cases, majoritarian institutions will and do end up serving the purpose; however, what this argument does is to abandon unqualified support for majoritarianism, and abandon equating it with democracy (see Dworkin, Freedom’s Law, Preface). The difference, as described by Professor Freeman, is between a purely procedural view of democracy on the one hand, and a substantive view on the other, which, in addition to the principle of majoritarianism, also incorporates other values such as respect for individual rights, the rule of law etc. within the definition of democracy (since it is only these rights, when allied with the majoritarian process), that actually serve the goal of equal concern and respect.
Two important points may be raised now: First, certain questions of grave Constitutional importance often arise that pit the interests of the majority against the minority. Allied to this is the fact that most of the basic human rights are rights against the majority. In such a situation, allowing the majority (through Parliament) to be the ultimate arbiter would be tantamount to it judging its own cause, and deciding upon matters that it has a close and intimate interest in. This problem is clearly recognized by Professor Sathe, who points out that the basic structure doctrine is essentially the “ultimate counter-majoritarian” check upon democracy” (see Sathe, Judicial Activism in India). The argument above, of course, is different in that it defines democracy itself as separate from majoritarianism, but the basic point remains that it is axiomatic that the deciding authority must be of a non-majoritarian character and so, cannot be the Parliament.
Secondly, certain principles are by their very nature beyond the pale of majoritarian authority. These include the most basic individual rights against the State, e.g., the right to life, equality and the fundamental freedoms, and the right to freedom of conscience. These are matters to be governed by individual autonomy, central to how an individual decides to order and determine his own life, and cannot be subjected to external majoritarian authority – because to make even those rights subject to majoritarian control would destroy individual autonomy in a way that would not be consistent with according equal concern and respect to all. Professor Dworkin gives the classic example of an orchestra conductor. “An orchestra’s conductor can decide, for example, how the orchestra will interpret a particular piece: there must be a decision of that issue binding on all, and the conductor is the only one placed to make it… but it would plainly be [unjustified]… if the conductor tried to dictate not only how a violinist should play under his direction, but what standards of taste the violinist should try to cultivate”. (see Dworkin, Freedom’s Law, Preface) Once again therefore, a counter-majoritarian check is required to ensure that such rights are not encroached upon, whether by legislation through an ordinary majority, or a Constitutional amendment through a super-majority.
The argument is extended by Professor Marneffe, who points out that the test of violation of democracy must be one of impact. If, therefore, the Court protects only those fundamental and basic rights that are essential to democracy as we understand it, and leaves all other political decisions to the legislature, this would not be undemocratic in impact.
A necessary question then arises: who determines the content of those basic principles and values that lie beyond the power of the majority? For reasons explained above, the power cannot lie with the Parliament. For the same reasons, it cannot lie with the executive. Therefore, within the framework of separation of powers, the judiciary must be the authority within which this power is vested. To this argument by default, it may be added out of the three wings of State, the judiciary is undoubtedly and by far, the weakest. Unlike the legislature and the executive, the judiciary cannot take any positive action, it holds neither the “sword, nor the purse strings” (see Hamilton in Federalist 78), and the maximum impact it can have upon the society is negligible, as compared to the other wings. Therefore, it may be argued that ex majore cautela, the judiciary is the ideal organ within which to vest the highest power of the State (of overruling the decisions of the popular majority), as it has the least ability to abuse that power and all the vast implications that it carries. While in Kesavananda, the judges in the majority conceded that the “possibility of abuse” of the amendment power had no bearing upon determining its scope and the limitations – it nonetheless seems obvious that when deciding the question of whether the highest form of State power ought to be limited, and if so, the nature of such limitation, the possibility of abuse and the extent to which such abuse can be taken are crucial and relevant considerations.
In summation therefore, the strongest argument against the basic structure doctrine is premised upon the flawed assumptions that democracy equals majoritarianism, and that the power of the majority in a democratic society must be absolute and unfettered. It is flawed because on a substantive conception of democracy, legislative procedures embodying bare majority rule are not identifiable with democracy; instead, they are only a part of the institutional framework of a democratic regime. Furthermore, majoritarian power cannot be unrestricted, as this would entail sacrificing those rights that, as a matter of principle are morally independent, to the whims of a majority. Therefore, once the majoritarian premise is dissolved, the associated objection, i.e. the rhetoric against “unelected judges” sitting in judgment over the choices of the majority is also found to be without foundation. Both by default and by virtue of strong independent reasons, the judiciary is the correct and only authority to legitimately enforce the basic structure doctrine within the framework of separation of powers.
It must also be noted that this entire argument not only justifies the basic structure doctrine, but also provides a method of identifying the basic features. This issue, and the seeming conflict it brings up with the way the Supreme Court has actually gone about identifying the basic features, will be dealt with subsequently.