On August 7, in his maiden speech while defending the Delhi Services Bill[1] in the Rajya Sabha, the former Chief Justice, and a nominated member of the Rajya Sabha, Mr. Ranjan Gogoi said that the basic structure doctrine has a ‘very debatable jurisprudential basis’.[2] Though the current Chief Justice of India (CJI) DY Chandrachud, has dismissed it as “they are just opinions and...
On August 7, in his maiden speech while defending the Delhi Services Bill[1] in the Rajya Sabha, the former Chief Justice, and a nominated member of the Rajya Sabha, Mr. Ranjan Gogoi said that the basic structure doctrine has a ‘very debatable jurisprudential basis’.[2] Though the current Chief Justice of India (CJI) DY Chandrachud, has dismissed it as “they are just opinions and are not binding”,[3] Mr. Gogoi’s comment about an established doctrine in Constitutional jurisprudence, is significant as it comes from a former CJI and a senior voice of the legal fraternity. Moreover, the timing of this comment is impeccable because this year marks the 50th Anniversary of the seminal Kesavananda Bharati case which gave us the basic structure doctrine and is often dubbed as “the case which saved Indian democracy”.
The Basic structure has been a settled and celebrated doctrine by now. It has quite successfully clarified and reminded us that the Parliament cannot subvert through amendments, the very source of its authority because amending powers of the Parliament are not unlimited. It is important therefore, to understand that the Basic Structure Doctrine (‘BSD’) reminds us that our Constitution belongs to every people residing in the territories of India and it cannot be tampered by a majority section of the populace or their representatives. The Supreme Court (‘SC’) is duty bound, as the guardian of the Constitution, to ensure that through amendment, the Constitution is not made a hand-tool or a face of the majority.
Not A Majoritarian Democracy
The Preamble to the Indian Constitution is not only the ‘key to open the mind of the makers’[5] but also an integral part of the Constitution.[6] It begins with, “We the People of India…”[7] Moreover, according to the Preamble, the people (each and every person in India) have resolved to ‘constitute India’ into a ‘democratic republic’. Hence, by implication, the democracy contemplated by the Constitution is an inclusive democracy and not a majoritarian democracy where the executive and the legislature have untrammelled authority to tamper with the grundnorm - the Constitution. Critics of the BSD and hence, critics of implied limitations on amendability, state that it should be the self-governing people who alone should revise the features of the Constitution, to help it meet the needs of the people. Therefore, any such implied limitations run counter to the notion of democracy. The critics here make a fundamental error by equating the Parliamentary power to amend the Constitution with that of the People’s power to amend the Constitution. If someone conceives democracy to include protection of sacrosanct rights of every individual, such that no individual is excluded, this becomes a very important precondition for democracy.[8] It is not ‘We the People’ who amend the Constitution, wherein, every person in India participates in the amendment process. It is the Parliament, controlled by the party (elected representatives) which gets the highest number of votes, which amends the Constitution.[9] Despite a Universal Adult franchise system, we have a ‘first past the post, winner takes all’ electoral system[10] where the majority party wields power in the Parliament. Therefore, without essential limits on amending powers of the Parliament, amendment to the constitution becomes a majoritarian amendment and not a ‘We the People’ amendment. Thus, an argument that the BSD presents a challenge to democracy relies on a very parochial majoritarian notion of democracy.
The Constitution is a ‘higher law’ which embodies sublime principles of inclusivity wherein, ‘democratic majoritarianism’ of elected representatives is tempered by commitments to principles vide indispensable legal limits to a majority government yielding power. Furthermore, the Constitution was never meant to be a majoritarian document. It is a product of inclusive and extensive deliberation by the Constituent Assembly[11] members stretching to 2 years 7 months 18 days. It guarantees minorities their cultural and educational rights,[12] it provides for checks and balances on organs of the government,[13] it also provides a remedy to an aggrieved whose fundamental rights have been infringed by the state.[14]
There is therefore a need for a BSD to act as a counter-majoritarian instrument for reminding the Parliament controlled by the seat of a humongous majority, that it is not just made for the majority people, it is made for ‘We the People’. The BSD seeks to neutralise any majoritarian strive to abrogate the Constitution.
The Constitution is a very consciously and brilliantly drafted document. It delicately protects not just the rights of the majority of the citizens but also those who are marginalised. This aspect is revealed, with regard to amendments, from the text of Article 368. A closer look of it clearly shows that an amendment under Article 368 does not entail complete destruction of the Constitution. In fact, the Judiciary is meant to have a counter-majoritarian voice - to review amendments by the Parliament.
Amendment is not equal to Abrogation
“The distinction still recurs, that to amend is one thing, essentially to change another.”[15]
There is a clear distinction between a mere amendment and an amendment which leads to abrogation of the identity of the document itself. The BSD steps in when the amendments to the Constitution seek to abrogate or change the identity of the constitution. The marginal note to Article 368 reads “Power of Parliament to amend the Constitution and procedure therefor”.[16] Here, the word ‘amend’ has been stated to cover the “addition, variation or repeal” of provisions in the Constitution. The word ‘amend’ or ‘amendment’ is defined as “An amelioration of the thing without involving the idea of any change in substance or essence”.[17] This clearly does not include abrogation of the Constitution or a stark change in its identity.[18]
Judicial Review of Amendments – A necessary Counter-Majoritarian voice
We live in a representative democracy. The word ‘representative’ implies that there is a delegation of powers[19] to a government which acts as an agent of the people. Therefore, if the Constitution derives its authority from the people, any amendment to it entails the exercise of ‘secondary constituent power’[20] by the Parliament. Thus, an agent is necessarily constrained procedurally and substantively by the Constitution. Article 368 defines the procedural limitations and the BSD highlights the substantive limitations to the exercise of amending powers. However, the norm of civilisation has been to break all limitations. The Parliament similarly, can break such limitations. Here comes the need for an independent ombudsman to review the Parliament’s acts. Thus, arises the need for judicial review of such unwarranted acts.
The Basic Structure review is the Judicial Review of amendments made to the Constitution and is not applicable to ordinary laws[21]. The Basic Structure review comes as a natural consequence of the power of the SC to review ordinary laws. As already mentioned, the Constitution explicitly bestows power to the SC to review a legislation using the yardstick of the Constitution.[22] This is also because the Judicial Review power is the ‘very essence of judicial duty’.[23] Hence, if the Constitution is silent about which organ is authorised to review constitutional amendments, the Courts naturally possess the power to review amendments. The judiciary vis a vis the SC is well within its authority to extend its jurisdiction. This is evidenced from the power of the Supreme Court to do ‘complete justice’ under Article 142 of the Constitution. For the purposes of doing ‘complete justice’, the SC is authorised to widen its jurisdiction by invoking the BSD.
It should be noted that the purpose of judicial review is not to harm the separation of powers and usurp Parliamentary powers. It is to hold the majoritarian Parliament accountable for its deeds. It is, a “modus vivendi than a means of entrenching constitutional values”.[24]
Views are personal.
[1] Formally known as, The Government of National Capital Territory of Delhi (Amendment) Bill, 2023.
[2] https://sansadtv.nic.in/rajyasabha/ranjan-gogois-remarks-the-government-of-national-capital-territory-of-delhi-amendmentbill-2023 (Time Stamp : 12:52)
[3] https://www.thehindu.com/news/national/retired-judges-are-not-colleagues-their-opinions-not-binding-says-cji-on-ranjan-gogois-remarks/article67172795.ece
[5] In Re: The Berubari Union AIR 1960 SC 845.
[6] Bharati, supra note 2, 485.
[7] The Constitution of India, 1950, Preamble.
[8] See Ronald Dworkin, Constitutionalism and Democracy (1995) 3(I) Eur. J. Phil. 2.
[9] See Article 368; It starts with, “[Power of Parliament to amend the Constitution and procedure therefor.]”
[10] Ranjan Ray, The Necessity for Delinking Democracy from Majoritarianism, The Wire, February 25, 2020, available at : https://thewire.in/rights/democracy-majoritarianism-india.
[11] Often referred to as ‘mini India’.
[12] The Constitution of India, 1950, Article 29, 30.
[13] See, for example, Id., Article 75, Article 13.
[14] See, Constitution of India, 1950, Article 32.
[15] Speech of Mr. Everett: on the proposition to amend the Constitution of the United States : delivered in the House of Representatives, March 9, 1826.
[16] The Constitution of India, 1950, Article 368.
[17] HENRY CAMPBELL BLACK, M. A, Black’s Law Dictionary, Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, ST. PAUL, MINN. WEST PUBLISHING CO. 1968 106.
[18] See., Bharati, 254.
[19] See, Dodge v. Woolsey, 59 U.S. 331 (1885).
[20] Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers 285-289 (2017).
[21] Kuldip Nayar v. Union of India AIR 2006 SC 3127.
[22] See, The Constitution of India, 1950, Article 13, Article 32.
[23] Marbury v. Madison, 5 U.S. 137 (1803) (per, John Marshall J).
[24] Pratap Bhanu Mehta, supra note 10, 156.