The basic-structure doctrine and its German and French origins: a tale of migration, integration, invention and forgetting- Summary

 
[As part of our New Scholarship section, we have been inviting discussants to respond to the public law-themed articles featured in Volume 5 the Indian Law Review. You can access all the posts in this discussion here. In this post, our editor Mariyam Mayan introduces the arguments made by Dr. Monika Polzin in her paper titled “The basic-structure doctrine and its German and French origins: a tale of migration, integration, invention and forgetting”. You can access the article here.]

In the landmark judgement of Kesavananda Bharati v. State of Kerala, the Supreme Court, by a narrow majority of 7:6, held that Article 368 of the Indian Constitution did not enable the Parliament to alter the basic structure of the Indian Constitution. Given its rich comparative framework, the Court’s theorization of the basic-structure doctrine seems to have been influenced by the work of German Scholar, Dietrich Conrad. It is in this light that Dr. Monika Polzin’s paper focuses on Conrad’s work, the source of his arguments and its journey to the Indian context. It tries to discern which parts of these past theories were lost in time and space, and which have survived to be developed further.

The French and German theoretical works: Carl Schmitt and Maurice Hauriou

Polzin begins her tale by exploring the works of Carl Schmitt and Maurice Hauriou on implied constitutional limits on constitutional amendments. Developed at the start of the 20th century, both scholars based their ideas on very different theoretical approaches.

Carl Schmitt’s work: constituent power as the ultimate power

Carl Schmitt, a German constitutional lawyer, developed his idea of implied limits based on a rather mystical conceptualization of the constituent power. Working within the framework of the German Constitution of 1919 [“Weimar Constitution”], Schmitt described the constituent power as a legal entity that existed outside (or alongside) a constitution and formed the basis of all power. The particularity of Schmitt’s theory is that he argues that the use of the constituent power could not be subject to a legal process. As the constituent power forms the basis for all powers, it cannot be regulated. The people could instead use this constituent power ‘through any recognizable or visible expression of direct will that is directed towards deciding on the manner and form of existence of a political union.’

Schmitt also conceptualized a distinction between norms that incorporated fundamental decision and hence formed the ‘real’ constitution (such as the form of government, introduction of fundamental rights, etc) and norms that were less important (described as ‘constitutional laws’). Combining these two ideas, Schmitt argued that under Article 76 of the Weimar Constitution, only those provisions of the Constitution that were considered constitutional laws could be amended under the amending power. The essential norms that made up the real or material constitution could only be amended by the constituent power, which according to Schmitt, rested in the people and could not be subject to any legal regulation.

Maurice Hauriou and the concept of constitutional legitimacy

The next part of the paper covers the work of French constitutional and administrative law professor, Maurice Hauriou. His theory of constitutional amendment rested on a rule-of-law based approach rooted in democratic principles. According to Hauriou, the constituent power was the founding legislative power of a nation, i.e., a national assemble specifically elected for the purpose of elaborating a constitution. Regarding the power to amend, Hauriou argued that constitutional amendments should be made according to special procedures, keeping in mind the special nature accorded to the constitution. Moreover, he made a distinction between a partial and total revision of the constitution. Similar to the enactment of a constitution, a total revision of the constitution could only be done by a national assembly elected for such purpose. In short, Hauriou regarded the amending power as a limited power that was bound by the relevant amendment provisions, unless it was constituted as a national assembly.

Hauriou also argued that certain principles were of such an essential nature, that they had a higher rank or legitimacy than the written constitution, regardless of whether they were contained in the constitution or not. Such principles included the Republican principle, the core content of fundamental rights, equality, etc. Hauriou implied that constitutional amendments had to be in conformity with the same.

Therefore, Hauriou’s theory is different from Schmitt’s approach, as the constituent power is not regarded as a mystical power but lays in the hands of a specifically elected constituent assembly. The limited amending powers of a revision organ that is not a constituent assembly are justified by higher constitutional principles and the idea that the right of a total revision of constitution lies in the hands of a specifically elected national assembly.

Migration, integration and forgetting: Dietrich Conrad’s work

Polzin begins the next part of her tale by noting that while Schmitt’s theoretical works were largely used by Dietrich Conrad in arguing for implied limits on the amending power in the Indian context, Hauriou’s theory played a more limited role. Having delivered lectures and written significant articles on implied limits on constitutional amendments, Conrad made use of extreme hypothetical examples (such as an amendment under Article 368 of the Indian Constitution that divides India to two states or abolishes Article 21) to emphasise why such implied limits were necessary.

Conrad described the key premise of Schmitt’s work as such: “that an amendment could not change the basic structure of the Constitution”. He further argued that such an idea was relevant in the Indian context owing to the rigid nature of its constitution. However, in alluding to Schmitt’s work, Conrad ignored those aspects of the theory that referred to the “constitution-destroying nature” of the constituent power. He also ignored Schmitt’s work after 1933, in which he uses the idea of the constituent power to justify the rise to power of the National Socialists and the “Führerprinzip”.

Contrary to Schmitt’s theory, Conrad did not perceive the constituent power as an almighty, mystical entity that was not subject to control. Even while using Schmitt’s theory to justify implied limits on constitutional amendments, Conrad’s conceptualization of the constituent power was based on a rule-of-law approach. Accordingly, for Conrad, the constituent power “signified a distinct and more directly creative influence in the institution of all other authority” that spoke through constituent assemblies.

Using Schmitt’s distinction between the constituent power and the amending power, Conrad argued that Article 368 of the Indian Constitution embodied special legislative procedures that have limited application, as opposed to the constituent power. Further arguing for limited amending powers, Conrad concluded that no amendment could abrogate the constitution or lead to its total revision. Even where partial alterations were concerned, the same would not be valid if their effect on the “organic context” of the constitution as a whole was such that the fundamental identity of the constitution was no longer apparent.

The Kesavananda judgement and the invention of the basic-structure doctrine

In Kesavananda, the Supreme Court held that the Parliament did not have the power to alter the basic structure of the Indian Constitution. As Polzin notes, the judgement is a “compilation of different judicial opinions” rather than one unified framework. That is, the implied limits on Article 368 were justified based on divergent, and sometimes contradictory, theoretical and interpretative approaches.

However, as Polzin further argues, what the majority of the opinions have in common is that they adopted an approach that was rooted in the rule of law, hence diverging from Schmitt’s mystical conceptions. The key arguments that the Court used in favour of implied limitations on constitutional amendments have been briefly outlined below:

  1. The meaning of the word ‘amendment’: The notion that the word ‘amendment’ in Article 368 did not include the power to repeal or destroy the Constitution was relied upon by Sikri J., Shelat and Grover JJ., Reddy J. and Khanna J. As opined by Justice Khanna, the word ‘amendment’ postulates that the old Constitution must survive without a loss identity, even when being subject to alterations. Such retention of the old Constitution essentially meant the retention of the basic structure or framework of the Constitution.
  2. Eternal principles, the founding fathers’ will and the nature of the Constitution: Another line of reasoning adopted by some of the Judges was that certain principles contained in the Constitution were eternal. Similar to Hauriou’s ideas, Justice Sikri relied on the assumption that the content of the constitution could be derived from its scheme or structure. Drawing attention to the preamble of the constitution as its basic foundation, he justified limitations on the parliament’s amending power based on the idea that the core principles contained therein were eternal. Such core principles would also include those aspects of the constitution such as secularism, democracy and freedom of the individual.
  3. Distinguishing between constituent and amending power: Another line of reasoning adopted by the Court was distinguishing between the constituent and amending powers. While the constituent power was vested in a special organ such as a constituent assembly (in line with the ideas of Sieyes and Hauriou), the amending power was vested in the parliament. Only the constituent power could completely revise, repeal or abrogate the constitution; as per the language of Article 368, such powers did not rest with the parliament or amending power.
  4. Preventing the abuse of power: Another justification for implied limitations on constitutional amendments was to prevent the misuse of power by the parliament. As elaborated by Justice Sikri, Article 368 could itself be amended to make the constitution completely flexible or rigid and unamendable. Limitations on constitutional amendments were, hence, necessary for preventing ‘extra-constitutional revolution’.

Migration, invention, integration and forgetting

In this section, Polzin argues that the justifications given by the Court in Kesavananda are markedly different from Schmitt’s ‘problematic’ conceptualization of the constituent power that is not subject to any external control. Rather, only Schmitt’s general idea that the amending power is limited and does not include the power to destroy the constitutions seems to have been integrated into the Indian basic-structure doctrine.

As Polzin further points out, the crucial difference between the Court’s judgement in Kesavananda and Schmitt’s theory is that the former is rooted in the rule of law and commitment to democratic principles. The rationale of the basic-structure doctrine was to protect the core identity of the constitution, which in turn would guarantee democracy and individual freedom. In that sense, it bore a closer resemblance to the theoretical works of Hauriou. Such a similarity in approach is particularly evident in the opinion of Shelat and Grover JJ., who conceptualized the constituent power as an instituted power, exercised through a specially constituted assembly. Thus, any amending power that was not organized as such an assembly would only have a limited power of amendment.

Conclusion

The development of the basic-structure doctrine is a powerful example of how Schmitt’s general idea of limitations on constitutional amendments has migrated to the Indian context while leaving aside the more dangerous and illegitimate parts of his theory that pertain to an unbound constituent power. Despite this apparent happy ending, Polzin ends her article with a cautionary note. Schmitt’s idea, along with other theories than recognize an unbound constituent power, can always be used to overcome implied and explicit limits on constitutional amendments, and even to completely destroy the same. As Polzin concludes, the concept of implied limits on constitutional amendments has two sides: a bright side that protects the core identity of the constitution and a darker side (in line with Schmitt’s theory) that could result in the destruction of a democratic, constitutional state. The doctrine must, therefore, be used cautiously.

 

Dr. Monika Polzin is a Professor at the Institute for European and International Law, Vienna University of Economics and Business. 

 

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