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Mainstream, VOL 61 No 5, January 21 & January 28, 2023

Basic Structure has saved the Constitution and Democracy | Vijay Kumar

Saturday 21 January 2023, by Vijay Kumar

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The Vice-President, Jagdeep Dhankar, has done it again. He started by joining law minister, in his daily bout of criticism of Collegium system ever since the swearing in of the Justice D Y Chandrachud as a chief justice of India, in his inaugural address as a Chairman of the Rajya Sabha. He, in his well-orchestrated stratagem, in conference of speaker in Jaipur, made full-frontal attack on the theory of basic structure enunciated by the larger ever bench of 13 Judges of the Supreme Court in historic Kesavananda Bharati in 1973.

When the theory of basic structure was formulated in the landmark judgment in Kesavananda, it was criticized by many constitutional scholars on the ground of it’s anti-democratic nature. Paul Recouer wrote that “discourse always occurs as an event, but is to be understood as a meaning”. Like all great discourse, the theory of basic structure occurred as an event and acquired meaning and legitimacy only when democracy was being subverted through notorious 39th and 42nd Amendment in the age of dominance of single party. The judgments of the Supreme Court in Indira Gandhi and Minerva Mills annulling the 39th and 42nd Amendment respectively, far from negating the will of the people, saved the Constitution and Democracy.

Thereafter, the most salutary aspect of development was that judges, particularly Justice Mathew and Y V Chandrachud, who opposed the doctrine in Kesavananda, invoked it to save the democracy and Constitution. The main plank on which the doctrine of basic feature was opposed by minority judges in Kesavananda was that the possibility of abuse of power was no ground to invalidate the amendment. After the 39th and 42nd amendment, the abuse of power was no longer a possibility but became a lived reality, and Holmesian dictum that “life of law is not logic but an experience” dawned upon the judges who opposed the theory in the first place. As the power to amend was abused, the criticism of the doctrine on the ground that it negated the will of the people lost its bite. The renewed attack on the theory of basic structure by the second highest Constitution functionary after 50 years of its formulation is extremely puzzling – indeed even shocking.

The nature of tension between the Government and the Supreme Court prevailing in present time is entirely different, as the Government, in its hegemonic moment of majoritarianism, grounded in muscular nationalism and cultural agenda, is set to frame the identity of the nation on the basis of what Lord Bhikhu Parekh terms ‘ascripted category’ which is at complete variance with core constitutional identities grounded in grand political principle of equality, liberty and fraternity. The framers of the Constitution made a conscious choice by opting for lofty political ideas in complete contrast to country, which came into being on the western side at the time of independence accompanied with partition, on the basis of religion. The identities of the Constitution correspond with the ideas of the country, as argued powerfully by Bhikhu Parekh and Sunil Khilnani.

There is thus dissonance between cultural agenda of the party that be and the core constitutional values. The framers departed from the tradition marked by patriarchy and hierarchy, and thus the complete absence of equality, and made a conscious choice for modernity and democracy based on universal adult suffrage.

According to Eminent Political Scientist, Pratap Bhanu Mehta, the criticism of basic structure theory on the ground of its being anti-democratic suffers from ‘impoverished concept of democracy’. Mehta offered sound theoretical framework for entrenching salient aspects of the Constitution in absence of which the Constitution, in his words, would be reduced to be “an artifact of passing fancy of transient majority of the day”. In another paper written by him, Mehta powerfully repelled the conflation of representation with the will of the people. The tendency to equate representation with the will of the people is the result of according the outcome of election as a sole source of legitimacy. The rule by majority is merely procedural aspect of democracy, and thus cannot - indeed should not - trump the constitutional constraints of both explicit and implicit nature.

Amratya Sen relies on the significance of ‘public reason’, conceptualized by John Rawls, in deliberative democracy, and goes on to quote Rawls that “the definitive idea for deliberative democracy is the idea of deliberation itself.” Prof. Sen concludes that “ballots have very important role to play but they are not the only thing that matters and they can be seen just as one part – admittedly a very important part – of the way public reason operates in democratic society. — Effectiveness of ballot themselves depend crucially on what goes with balloting, such as free speech, access to information and freedom of dissent”.

In similar vein, Philosopher, Robert B. Talisse, in slim but thought-provoking book : “Overdoing Democracy” offers brilliant insight with prescription of putting politics in its place and argues that election is important ‘public good’, but deliberation in which all citizens not only vote as equal but also participate and be heard as equal citizen is more important social good. The importance of overarching political principle is amply highlighted in reference made by Francis Fukuyama to the famous debate between Abraham Lincoln and Stephen Douglas in which Douglas accorded primacy to democratic choice, whereas Lincoln’s response was that “there was more important principle at stake than democracy, namely, the premise that all men are created equal”. The Vice President needs to be reminded of the celebrated dictum of Justice Jackson in Barnette case that “the idea of the Constitution is to withdraw certain subjects from the vicissitude of political controversy, to place them beyond the reach of majority”.

The theory of essential features has been lodestar for democratic constitutionalism. It is articulation of this doctrine that established, in the words of Prof.Upendra Baxi, adjudicatory leadership of the Supreme Court of India in constitutional hermeneutics. The doctrine of basic structure has migrated not only into South Asian countries except Sri Lanka, but as far- flung countries as Columbia in Latin America, Kenya in Africa and Israel in West Asia and this speaks of robustness of idea of entrenched principles of constitutionalism. Far from frustrating the will of the people, the theory of basic structure has saved the Constitution and democracy and attack on it on the ground of its being anti-democratic, and that too, by no less a person than Chairman of the Rajya Sabha, lacks as much in proportion and reality as in constitutionality .

The basic structure framework, in last analysis, pertains to identity of the Constitution. The attack on theory of basic structure on the eve of 50 years only shows the discomfort of the government with the core identities of the Constitution.

Fortunately, the stewardship of the Supreme Court and the Indian judiciary is in the hand of the man known and respected for his capacious erudition, constitutional scholarship and jurisprudential adulthood. Confronted with uncouth comment and calculated attack, the Chief Justice Chandrachud has advocated for display of statesmanship, and is acting with exemplary sagacity and restraint. The Chief Justice has always underscored the importance of dialogical nature of constitutionalism, and it is for the ruling dispensation to demonstrate statesmanship instead of letting occupant of high constitutional office indulging in puerile exhibitionism. The theory of basic structure has great enduring value for constitutionalism and attack on the doctrine will subvert the constitution and democracy.

(Author: Vijay Kumar, is Senior Advocate, Supreme Court of India. His book on the basic structure is soon to be released)

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