Structural strength

The basic structure of the Constitution has authority

In a clear indication that the higher judiciary is not prepared to give up all its historic powers, Chief Justice of India (CJI) D Y Chandrachud said over the weekend that the basic structure of the Constitution had served as the “North Star” for legal interpreters of that document. This represents a major defence of the utility and purpose of the basic-structure doctrine, which is under attack for being supposedly undemocratic. Some in the government have attacked the doctrine, which allows the Supreme Court to declare even legal changes that have gone through the difficult process required for formal amendments incompatible with the “basic structure” of the Constitution they seek to amend. Vice-President Jagdeep Dhankhar, for example, has pointed out this restricts the powers of Parliament, which is the democratically accountable body in the constitutional framework. While this undoubtedly constrains the immediate powers of the electorate to make permanent changes to the Constitution, it does not necessarily imply the doctrine is “undemocratic”.

All democracies build in a balance between the immediate desires of the electorate and the constraints on that action which emerge from history, norms, and constitutional procedure. The basic-structure doctrine has a certain logical consistency that has led to it being adopted in multiple other countries and jurisdictions with properties similar to the Indian system. Several neighbouring countries adopted it after India did. It was adopted in post-war Germany to protect the basic laws. The apex court in Singapore, which too has a post-British legal system similar to India’s, deliberately did not adopt the basic-structure doctrine, but explained quite effectively why it did not: Arguing that the basic-structure doctrine emerged from the justifiable claim that Constitutions drafted by a Constituent Assembly held a different status in their relationship to the legislature from Constitutions drafted by a regular Parliament.
 

Justice Chandrachud’s description of the basic structure as the North Star is also worth pondering. The CJI argued in his speech that any interpretation of the Constitution needed to be subject to guidelines, and the basic structure essentially served as that guideline. Yet in the end, all these disputes about the powers of Parliament and the limits of interpretation come down to the same thing. The basic-structure doctrine keeps the Indian state tethered constitutionally to the norms, ideas, and values of 1950, the year the Constitution came into effect. But many in the electorate and, therefore, in electoral politics would like to move beyond those norms. They might desire a new idea of what India is rather than the one that the Constituent Assembly put into this country’s founding document.

This may be a legitimate desire, even if one that conflicts with social cohesion and republican norms. But it is not one that can be brought into being simply by winning a few elections. That is the purpose of the basic-structure doctrine: To hold India to the principles and compromises that were forged in the struggle for freedom. It is that struggle that provides the ultimate legitimacy to the Constituent Assembly and the principles of 1950. If the basic-structure doctrine is to be abandoned, then what takes its place must also have equal authority as the founding generation provided. It would be hard to make that claim.