• Global Legal Innovation Advisory

Basic Structure and its Politico-Legal Transformation in India: Introspecting Purpose and Volatility



Abhivardhan

President,

Global Law Assembly


Vaibhav Dwivedi

Chief Executive Officer,

Global Law Assembly


The Basic Structure Doctrine is an interesting and transformative connotation in the history of Indian Constitutional Law. There is no doubt that since 1973, this politico-legal doctrine has reflected the vision to preserve and emphasize on the integrity-centric behaviour of Constitutional Law espoused on the basis of the premise that the polity guaranteed and reckoned by the Indian Constitution has to be protected. Now, the Basic Structure is utilized as a juridical doctrine, which is often sought as a firewall between Arts. 13 and 368, with its own exceptions and relationships. On the other hand, if we assume that the Basic Structure Doctrine is not political, would also be fallacious – because as stated above, the conception – which was based on preserving the operative essentials of the Indian Constitution, which are substantially respected by the Supreme Court of India in the Keshavananda Bharti case under the politico-legal guise of civic nationalism, in opposition to the Congress Party’s amendments to the Constitution at that time – has sought transformation and some relevant backlash in the 21st Century. The article therefore covers an analysis of the legal and political policies revolving around the Basic Structure Doctrine in a nutshell. The authors intend to provide suggestions and criticisms to the impact of the Basic Structure Doctrine in 3 important frontiers – Legal and Doctrinal Evaluation, Foreign Relations and Sovereignty and Indian Nationalism.


The Basic Structure in the Indian Constitution: A Legal cum Doctrinal Evolution


While discussing the basic structure doctrine, the very first case that comes to mind is the Shankari Prasad’s case of 1951. The validity of the first constitution amendment act was into question on the ground of breach of fundamental rights under part III of the Constitution. The apex court held that power to amend the constitution including the fundamental rights were contained in A. 368 of the Constitution and an ‘amendment’ was not a ‘law’ within the meaning of A. 13(2). Later came Sajjan Singh’s case of 1965 where the validity of the 17th constitution amendment was into question. The court said that an ‘amendment’ included ‘amendment’ to all the provisions of the Constitution. In 1968 came the Golaknath’s case where the apex court prospectively overruled the decision in Shankari Prasad and Sajjan Singh. It held that an amendment was a law under A. 13(2) and if it violates any fundamental right, it may be declared void.


In 1971, the government came up with the 24th Constitutional Amendment and followed the Kesavananda verdict of 1973 which laid down the ‘Basic Structure Doctrine’. The verdict spoke about the limitations on the amending power of parliament under A. 368 and gave the concept of a Basic Structure in the constitution which cannot be amended. The 42nd Constitution Amendment came in the year 1976 in which clauses (4) and (5) were added to A. 368. These were stuck down in a subsequent case of Minerva Mills (1980). SP Sampath Kumar and L Chandra Kumar are two other important cases ruled by the Supreme Court which discuss the ‘basic structure’ at length.


How the Legal Face of the Basic Structure Stands Today?


The ‘Basic Structure Doctrine’ seems to be well settled but remains a source of unending antipathy. Much pondering has been done over the years on the ‘textual illegitimacy’ of the ‘Basic Structure Doctrine’ as it does not find a mention in the constitution. It gives the judiciary a power to impose its philosophy over a democratically formed government, which is famously referred to as the ‘tyranny of the unelected’. Judges are well respected people, but there is no shying away from the fact they are unelected.


Fundamental Rights are the part of ‘Basic Structure’ of the Constitution. Two recent judicial pronouncements highlighted a conundrum which is worth discussing. The Kerala High Court in a monumental decision has held ‘Right to Internet Access’ as a fundamental right. The Court declared that the right to have access to Internet is a part of ‘Right to Education’ as well as ‘Right to Privacy’ under Article 21 of the Constitution of India. Later in Anuradha Bhasin, the apex Court refused to comment on the point expressing that issue was not raised in the petition before it. Secondly, the Apex Court itself has said in one of MC Mehta’s cases of 1986 that ‘Right to Pollution Free and Healthy’ environment is a Fundamental Right under Article. 21 of the Constitution but recently stayed a very important NGT order preventing the cutting of trees for a Highway expansion project.


Lately in a case concerning the liberty of journalist Arnab Goswami, the Supreme Court used its writ jurisdiction under Article 32 to allow him to be released on interim bail, which was disallowed by the Bombay High Court. In the very same week, when a similar matter was before a bench led by CJI SA Bobde, the bench expressed it’s disinclination towards extending remedies to the petitioner under A.32 and Bobde J. even went on to say that ‘they were trying Article 32 petitions’. The apex court’s registry has also been under the scanner for arbitrary listing of cases. When a matter was argued on the judicial side concerning the arbitrariness of the registry, an Arun Mishra J-led bench dismissed the matter imposing a cost on the petitioner.


Indian Nationalism and Basic Structure: A Policy Undertaking


Nationalism in India is not the same as it is seen in Western Europe and North America. Indian Nationalism has various colors and schools, which encumber MK Gandhi, Vivekananda, Rabindranath Tagore, Nehru, Madan Mohan Malviya, Savarkar and Bose, to mention for example. Now, the most argued form of nationalism in India – where the Indian Constitution is presented as a biblical document – is civic nationalism. Although adherence and respect to the Westminster form of parliamentary system, the Common Law system of judiciary and the American-European conceptions of rule of law in India is not problematic, provided that the application and maturation of the systems of power and competence applied are coherent and unrestrictive to the natural liberties of the people in the polity. Of course, the Indian Constitution – despite its various flaws (more in operability, less in substance) is a unique basic law as compared to other constitutions, but there is no doubt in agreeing with the fact that civic nationalism often, in the works by Nehruvian and Gandhian socialists, Ambedkarites and other moderate socialists in India – has been eulogized well on paper, if not on ground, which is why the Basic Structure and the concept of civic nationalism has to be rigorously assessed. Politically, the Basic Structure Doctrine has been eulogized and even misinterpreted by scholars and former judges wherever they wish to do so. For example, despite the fact that the Ministry of Home Affairs in the Government of India still has to publish the Citizenship (Amendment) Rules in 2020/2021 based on the Citizenship (Amendment) Act, 2019 – many people have wrongly assumed the conception of secularism through the mere wording of the term ‘secular’ in the Preamble. Now, acknowledging but sidelining the fact that the Preamble of the Indian Constitution has been continuously and unreasonable eulogized as the ‘Thesis’ or ‘Edict’ of India as a constitutional state, mere indoctrination of such ideologically religious conceptions on a Constitution’s Preamble is not a smart and effective way to perpetuate scholarship and innovation in understanding what a Constitution resembles to the state to which it confers itself as a Basic Law. Now, people would cite so many judgments from a law cases repository and comment that the judges have reflected a sense of worship and honor to the Indian Constitution’s Preamble. However, that itself has to be seen with an anthropological outlook, or a blind and blunt outlook of such a trend in the judiciary is unacademic and counter-productive.

Let us take the example of the eulogy of the Preamble made in various judgments by High Courts and even the Hon’ble Supreme Court. What purpose does this eulogy or flattery merely serve to the operative aspects of constitutional and administrative law in India? Not much or maybe insignificant, because polyvocality in judgments in a Common Law system can easily affect the way judgments direct and state the legacy of ‘stare decisis’ in the system. That is reflective in the cases related to habeas corpus, the recklessly passed NGT orders on cracker ban, without clearly yearly prescriptions, misuse of Arts. 25-30 of the Indian Constitution when it comes to Temples and related institutions & even weird cases of judicial overreach in matters which should be dealt or left to the Parliament or the Executive.

The list is endless, but it is important to understand that a mature democracy like India, need not to imitate the aesthetic illusions behind understanding conceptions like judicial review, nationalism and even constitutional morality – because (1) doing it is a colonial hangover and culturally and practically at a policy level, blind and unreasonable; (2) sovereignty and constitutionalism even in international law, despite the fact that recognition and estimation of state practices can be contested and observed, are inviolable, where it is not the responsibility & liability of the precepts of law to share the sentiment completely to a post-colonial state like India; and (3) constitutions and the ideals around them mature, migrate and transform – and so mere eulogizing a set of biased and myopic undertakings of civic nationalism espoused by Ambedkar, Gandhi and rest would be unreasonable. That is the reason why the Constituent Assembly Debates and even the Privy Council decisions are not binding on any court of law in India, but are respected at best, even if the former is assumed to be a ‘moral guiding force’. However, at an anthropological level, works such as the Debates in the Constituent Assembly, the Privy Council decisions, the reports and works by the British Government serve as a historical blueprint (not compass) to explain how the Basic Structure of the Indian Constitution has transformed so forth.

Now, politics and law are not separate, but legal policy and ideological obscuration must definitely be seen separate, dissected and not indifferent. The reason is clean. The policy behind a law while is instrumental to execute and enact a law with some measure of success, ideological obscuration (a European problem, probably) – causes people to create schools of thought and opposition based on whatever ideological viewpoints they assume. Indian Nationalism suffers from the binary nature of policy-making and ideological obscuration – which is why the constantly fueled fear that Indian Constitutionalism is in danger looms through op-eds, reckless and careless orders and statements by academics, juries, advocates and even politicians to mention.

The Basic Structure Doctrine was a clarion call against the authoritarian wishes of the Congress Party, and this is a fact, considering the circumstances that were present. However, the Basic Structure Doctrine must be espoused with reasonability, and with a sense of diversity in unity first. It is pompous and unreasonable to impose the Basic Doctrine as an archaic idea with the politico-legal assumption that India is a socialist democracy, and it has not transformed economically, politically, socially, individually and anthropologically. For example – there is no doubt that the US Constitution’s First Amendment Rights are being opposed by the Democratic Socialists and Cultural Marxists, while the Republican Party and the Libertarians are in full support of Free Speech and the First Amendment against the Big Tech. However, neither Joe Biden, nor Kamala Harris can compromise two important ideological connotations of the US Constitution and Democracy, which Donald Trump has more or less upheld to some extent, which are – (1) the Judeo-Christian cult; and (2) American Exceptionalism. These 2 connotations have both merits and demerits, but this series of trends on the First Amendment shows that debate is welcome, provided that the basis is respected. Similar debate on something like (but not exactly Basic Structure) was started in the UK by Brexit Party’s Nigel Farage, when he stated in his party manifesto in 2019 about written constitution and abolishing the House of Lords, which after David Cameroon, has not been entertained so well by the Tories, and so not the Labour Party. Thus, debate and competition is always welcome, which shows that the Basic Structure should emphasize on diversity in unity, in order to strengthen the sovereign character of India, through by and for its people, rationally. It would be anthropologically tenable, and despite the reality that advisement would have to be taken, some stability in the public discourse would serve the Indian democracy more than before. In fact, India can outperform as a democracy in some aspects of governance, like avoiding identity politics, ideological obscuration and conflict politics, unlike the West and the Middle East. Economic transformation is a completely different avenue, but if the aesthetics of governance is matured and realized anthropologically, maybe India can, on the basis of its civilizational values enshrined in the Constitution, and the value chains it creates and shares with its people would serve best.


Basic Structure and the Realpolitik: An Indian Evaluation

To assume if Basic Structure as a politico-legal doctrine cannot affect realpolitik is wrong. According to the examples enumerated on the US and the UK, it would be clear for any student or reader of international relations to understand how internal politics affects foreign policy and international relations. From competition policy to human rights to transitional justice to AI Policy, the abstract idea of Basic Structure more at operative levels reflects the Indian polity. Take Secularism as a good example. India espouses Secularism in the United Nations as a substantive prowess to show how much it preserves and protects its minorities, whether of any kind (not just religious). Now, despite the fact that the Western media reflects India badly, it is not doubtful to believe that even India’s soft power tool of Secularism and the insurance of religious freedoms was not matured for a long time, until 1991. Adding to the geopolitical situation India faces with Pakistan, the role of civic nationalism, and cultural pluralism is clearly visible. Pakistan, as based on Muslim Nationalism, founded by Jinnah, suffers badly from the fact that whatever whimsical ideals its leaders had propagated to justify the partition in 1947 are losing anthropological purpose. Leave the issue of imagery and diplomatic couture: the current cabinet led by PM Imran Khan does not have even any credence to act reasonably and preserve or handle the ties it has or had with the Arab and European states. China’s influence on Pakistan’s economics, the failure of CPEC and an amazing statement by the Sindh Bar Council condemning the Pakistani Army over their interference after Safdar Awan arrest clearly shows what values they espouse, and how they seek human rights, rule of law and judicial review. In agreement with Quentin Skinner’s lecture on the Genealogy of States in 2009, where he clearly explains the usefulness of the ‘fictional’ theory of sovereignty through the example of Barack Obama’s version of the US in a globalized world, it is fair to assert the point that Basic Structure in spirit can be named, shaped, chiseled and even represented in whatever way possible. For Iran, the Basic Structure as an idea, not a legal doctrine in absolutism can be the system of the Assembly of Experts which causes the election of the Ayatollah. For the French, Laïcité can be somewhat near to what Basic Structure is in India. For Russia, despite years of Communism, the Christian Orthodoxy and the Romanovs still matter. For India, there are some unifying ideals, which are culturally, not monarchical, dogmatic or ideological: they represent the dissection of the notions of power and competence, and they espouse universalism differently. A piece of reference which can be taken into consideration is a recent article authored by J Sai Deepak for The Daily Guardian on Vedantic Universalism.

Basic Structure – in India – must not be utilized for judicial overreach, nor, should be aesthetically foreign. There is no doubt that India as a sovereign state has to mature and ripen its conceptions and understanding of sovereignty and constitutionalism like France and the US in their early years. Anthropology always speaks for itself; it is therefore important that to realize Basic Structure as a reasonable doctrinal feat in Indian Jurisprudence, we should avoid enfranchising sociological theories which endanger the operational autonomy of the Indian state to mature and transform itself, better than Europe, the US and even the People’s Republic of China.