Monika Polzin’s article, titled ‘The basic-structure doctrine and its German and French origins: a tale of migration, integration, invention and forgetting’, is a philosophical excursion on the idea of constitutional identity / basic structure theory. I wonder whether the basic structure doctrine in India can be traced to either German or French traditions, but nevertheless her analysis provides us an opportunity to explore its contours from the philosophical angle and locate it within European constitutional theory and comparative constitutionalism. Although Indian courts have borrowed from different jurisdictions by citing excerpts from case laws or books, only in exceptional cases have the judges displayed an urge to theorize the concepts, and the basic structure doctrine is no exception to this proposition.

I have also not come across any serious academic endeavour by Indian academics to grapple with the theoretical dimensions of the basic structure doctrine, barring the likes of Prof. Upendra Baxi or Dr. Rajeev Dhavan. In this light, I find this article very rich and thought provoking. However, at the very outset, I must point out that her claim that Professor Baxi’s conceptualization of constituent power approximates the approach of Carl Schmitt is extremely controversial. In my opinion, Prof. Baxi, hailing from the tradition of sociological jurisprudence, would not advocate such a mystical conception of the constituent power, nor would he endorse the notion of commissural dictatorship. Unlike Schmitt, Baxi evolved his own notion of the constituent power. According to him, constituent power is vested concurrently in all the branches of the State, and he has constantly guarded against its monopolization by the Parliament. This view has been shared by Beg J. in Indira Nehru Gandhi’s case, and reiterated in the Bommai case. On the other hand, I endorse her view that Sikri J.’s approach matches the scholarship of Maurice Hauriou, locating constituent power in democratic principles and the rule of law.

However, in my opinion, how far the discourse in Kesavananda Bharati offers guidance in conceptualizing the basic structure is a moot question. This is so because the doctrine has been articulated in many ways, and by adopting methodologies which are at cross purposes with one another. For example, the approach of Sikri J. tends to conform to the natural law school and he purports to resort to structural interpretation of the Constitution in order to inhibit the exercise of constituent power. He locates implied / inherent limitations in the structure of the Constitution rather than in any particular provision. On the other hand, Khanna J. largely invokes legal positivism and is wary of invoking mythical ideas like implied limitations to confine the exercise of constituent power. Khanna J. limits the exercise of constituent power by placing an interpretative gloss on the word ‘amendment’; following the American tradition, he cautions the Parliament against its deployment to destroy the Constitution completely. Interestingly, the other judges constituting majority are not as forthright as Khanna and Sikri JJ. Shelat and Grover JJ. tried to confine the exercise of constituent power by equating it with the core of a religion by opining that while the core of a religion always remains constant, the practices associated with it may change. Same is the case with the Constitution; Its basic structure remains immutable but not any particular provision. Hedge and Mukherjea JJ. caution against the complete destruction of the Constitution lest a constituent assembly is specially reconvened for this purpose. Jaganmohan Reddy J. invoked the notion of abuse of power to guard the Constitution against inter alia totalitarianism. In other words, the focus of the Kesavananda discourse was to guard against any strategy aimed at complete destruction of the Constitution.

Even the minority judges in Kesavananda Bharati did not necessarily dispute the fetters on amending power, rather they refused to agree with majority in restraining the parliamentary authority to regulate fundamental rights by promoting the Directive Principles of State Policy. In fact, in respect of 25^th amendment, the position of the majority and minority was not very different; the same is very well documented by Prof. Baxi.

In this light, it is interesting to find out to what extent the views of Prof. Dietrich Conrad have influenced the interpretation or conceptualization of the basic structure doctrine. To my mind, we would be reading too much into Conrad if we were to attribute to him the fatherhood of this doctrine in India. Conrad’s philosophy was too complex and intricate to have been adopted by the Supreme Court to its fullest extent. Of course, it is possible to argue that a kernel of his philosophy-that public power should not be used for purposes unauthorized by the Constitution or which are counter-productive to the evolution of the Constitution, or which would destroy the eternal values at the core of the Constitution- has been endorsed by the Supreme Court.  For example, he drew a very interesting distinction between the Parliament and the constituent body. For him, the latter was an impartial and neutral institution with the solitary aim of creating a constitution, whereas the former, being a partisan body, cannot have the properties of either neutrality or exclusive purpose. However, if we look at the proceedings of the Constituent Assembly, it is clear that it was as partisan as the Parliament of any state. In fact, the Constituent Assembly used to perform the functions of both the constituent body as well as the legislature. From this, it becomes clear that even without observing neutrality, a body could create a constitution. To my mind, Conrad became relevant to the Court for countering an extreme argument that the Parliament of India is so sovereign that it can unmake a constitution or even destroy it completely. This argument of the Attorney-General was taken by the Court at its face value and therefore, it used Conrad to support the proposition that a power created by the Constitution cannot come into play for its destruction. Mathew J., in his dissenting opinion, on the other hand, sounded pragmatic. He conceptualized the constituent power as a supra power above rest of the constitutional powers, and therefore did not countenance any limitations on its exercise. According to him, even if the constituent power is sourced to the people, once delegated to the sovereign, the delegation becomes irrevocable and its exercise by the sovereign can be limited by only in terms of form and manner as laid down in the Constitution. Of course, for him, even the form and manner were not static and could be altered with the exercise of constituent power. He took this position to avoid infinite regression and to finalize the location of constituent power in the constituent body. Probably for the same, he placed reliance on the text of Article 368 wherein the term ‘constituent power’ is used. However, in light of the precedent of Kesavananda Bharati, he changed his position in Indira Nehru Gandhi along with some other minority judges. However, neither in Kesavananda Bharati nor in further jurisprudence, has the Court been able to theorize the notion of constituent power, as lamented by Professor Baxi. Although in Nagraj and Coelho, the Court referred to the distinction between constituent and constituted power, articulated by Seervai, neither the Court nor Seervai have been able to determine the location of the constituent power. It is therefore possible to argue that the assumption that the constituted power cannot be employed to destroy the basic structure / identity of the constitution, is a priori. Alternatively, using Prof. Maurice Hauriou’s theory, it may also be possible to contend that in post-sovereign constitutions, the constituted power, being a by-product of rule of law, regulates the exercise of constituent power. Employing Kelson, one may also argue that constituent power from the insider’s perspective is political rather than legal.

The conceptualization of constituent power is also predicated on the conception of the constitution. If it is assumed that the constituent power performs only constitutive functions, then it follows that with the adoption of the constitution, either it goes into the background or remains in suspended animation forever. As per this understanding, the constitution is assumed to be completed in all respects once it is adopted.

On the other hand, if the function of the constituent power is not merely constitutive but also transformative, then it follows that when the constitution is adopted, it is not necessarily complete in all respects; rather it may still be a work in progress in certain aspects. Generally, deeply divided societies have this perspective about the constitution. In my opinion, India, being one of these deeply divided societies, could not have assumed on 26^th November 1949, that its Constitution was complete in all respects. In fact, in many respects, the Constituent Assembly merely adopted transitional provisions, thereby leaving the finalization of the issues with the amending body and the Parliament. Understood this way, it is possible to argue that the constituent power is both anterior to and within the constitution. Looked at superficially, this sounds paradoxical. However, looked at pragmatically, the position seems to be very clear. Otherwise, it is not plausible to regulate the exercise of constituent power by the basic structure which is part of the constitution. Only when it is assumed that the constituent power is both anterior and internal to the constitution, that the basic structure can discipline the same. Of course, such a view lacks analytical rigour and undermines the cohesive distinction between constituent and constituted power, the latter being derived from the former. Theoretically, I accept this criticism, but I also hold the view that a constitution does not carry the onus of accurately theorizing all its aspects. In the Hartian sense, the basic structure may be recognized as a rule of adjudication, thereby playing a vital role in the conceptualization of the constituent power. Justice Marshall, while maintaining a people-centric conception of the constituent power, had very rightly observed in the celebrated case Marbury v. Madison that “the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness”, but that “the exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated”. Based on this assumption, he embedded the notion of judicial review in the U.S. Constitution and recognized role of U.S. Supreme Court as the exclusive interpreter of the Constitution.

The basic structure/ constitutional identity in India can also be conceptualized from the standpoint of a moderated Dworkinian version of moral reading of the Constitution. It may be argued that a contingent version of basic structure relative to time and circumstances, can serve as the best fit to interpret the Constitution and to adjudicate on its interpretation.

Prof. Monika Polzin’s position that India has integrated the German notion of the basic structure seems to be fuzzy because both societally and materially, the position of the Indian and German constitutions is very different. The Indian Constitution does not textually eternalize any of its provisions, whereas the German Constitution does. The Indian Constitution does not promote or foster International Law in its enforceable provisions. It merely refers to the same in its aspirational part (DPSP Part IV) whereas the German Constitution textually fosters integration of Germany with Europe. Compared to German society, which is by and large homogenous, Indian society is not only deeply divided but is also heterogeneous. Against this backdrop, to assume that India would emulate the German notion of the basic structure, would be a very spacious proposition. In my opinion, the Indian version of the basic structure, though somewhat influenced by the view of Prof. Conrad, is an autochthonous being contingent on typical Indian constitutionalism, a complex web of entrenchment of rights and vesting of powers with constitutional authorities. This is evident from the simultaneous entrenchment of fundamental rights and conferment of powers to abrogate the same on the Legislature, under Articles 31(B) and (C). Thus, in India, the conception of law is not only transformative, but also brute power-constitutive. Viewed against this backdrop and in light of Article 368, which explicitly vests Parliament with ‘constituent power’, the intervention of the Supreme Court in striking down amendments is extraordinarily tenacious compared to its German counterpart. The German Constitution, by entrenching certain provisions as eternal, provides a clear mandate to its Constitutional Court to adjudicate on the validity of constitutional amendments. Viewed thus, the Indian Supreme Court stands on a sui generis pedestal compared to its German counterpart. Probably the position of the Indian Court can be legitimized by invoking the contemporary notion of teleology i.e., fostering the purposes for which the Constitution was given by the people to themselves.

However, unlike the German Constitutional Court, which has taken a very clear stand in safeguarding the  identity of the German Constitution  against the intrusion of International Law (such as in the Lisbon case) despite a clear constitutional mandate for Europeanization. The Indian Supreme Court has been remarkably mute on the role of the executive in ratifying international treaties. The apex court of India has provided extraordinary latitude and deference to the actions of the executive and the parliamentary response to the same. To my mind, such categorical deference without proper conceptualization of the constituent power on part of the Indian Supreme Court fuels the relationship between Indian constitutionalism and international law. In my opinion, Polzin’s idea of integrating the German idea of the basic structure becomes relevant in India in the context of indiscriminate ratifications of various treaties, marked by a process which is extremely opaque.

In terms of the relevance of Conrad, I would like to explore new avenues for the application of the basic structure doctrine in India, e.g., its invocation to combat and question inaction on the part of the Government of India and Indian Parliament in not categorically enjoining discrimination on the ground of physical and mental disability. This novel argument is justified in light of India’s ratification of the United Nations Convention on the Rights of Persons with Disabilities. Similarly, inaction on the part of the Government in not enforcing preventive detention reforms in Article 22, as it stands after the 44^th Amendment, must also be disciplined by the basic structure doctrine. Unfortunately, it was a missed opportunity on the part of the Supreme Court in A.K. Roy, where instead of looking at this issue from a ‘rights perspective’, the Court viewed the same from the perspective of administrative law by approximating the so-called power of the executive to bring laws into force with conditional legislation. In my opinion, the enforcement of constitutional amendments is markedly different from the enforcement of conditional legislation. Even textually, it is explicit, as under Article 368 the President does not have any discretion while giving assent to constitutional amendments as compared to an ordinary legislation enacted by Parliament. Taking another example, if it is assumed that with the amendment of Article 359, that Articles 20 and 21 have been made constitutionally eternal, can an amending body abrogate this eternal nature  merely by special majority in the absence of any directive to adopt an entrenched procedure (special majority plus assent of half of the states)? In my opinion, if the Court answers this question in the negative, then in a way, it might emulate the German conception of eternity or constitutional identity.

However, as evidenced by the record of the Court, it has been extremely latitudinous in conceding to the amending body vis-à-vis majority of the amendments. It has intervened only to retain its guardianship of judicial review and to safeguard the fundamental rights of the citizens. From this, it becomes clear that the conception of the basic structure evolved by the Supreme Court is unique and fits well with the Indian scenario and therefore, to compare it with foreign traditions, would be a mistake. Definitely, as an idea that power should not be used for collateral purposes, the notion of the Indian basic structure has been adopted by several jurisdictions with necessary moderations to suit to their circumstances. Thus, to conclude, the Indian basic structure has its own terrain and scope, and though the Court has quoted from Conrad and other theorists, it would be too point-blank an assertion to contend that we have thereby followed the tradition of a particular jurisdiction. To my mind, the Court has by and large deployed the basic structure to guard against regression in respect of judicial review and to promote the transformation of Indian society. However, by remaining mute on the perfunctory implementation of international treaties, the Court has played little role to ventilate the Indian legal order through progressive constitutionalism, particularly in respect of minority communities. In India, the question is not whether Parliament has wide constituent power; rather the question is how such power should be wielded and exercised by it. The Parliament and the judiciary have been able to address this question through a constructive dialogue rather than confrontation, and therefore there is no question of Parliament invoking the Schmittian political theory of constituent power.

As far as her reference to the situation in France is concerned, the Indian Supreme Court has somewhat adhered to the same with its deference to the democratic process. However, there is an increasing awareness about unrepresentativeness of the so-called representative bodies vis-à-vis certain marginalized sections of society, and therefore constant attempts are being made to discipline constitutions through the ideas of global constitutionalism. Viewed from this perspective, the conceptions of both constitutional identity and constituent power assume a cosmopolitan shape. That is, there are varying perspectives, both on constituent power as well as constitutional identity. In this light, although Prof. Polzin’s article is a good read on the different conceptions of constituent power and constitutional identity, and on the German and French positions, I find her claim of India adopting the German conception of the basic structure to be very broad.

References

1. “The Little Done, the Vast Undone”-Some Reflections on Reading Granville Austin’s “The Indian Constitution”, Upendra Baxi, Journal of the Indian Law Institute (Vol. 9, No. 3, pp. 323-340) (1967).
2. Limitation of Amendment Procedures and the Constituent Power, Dietrich Conrad, Indian Yearbook of International Affairs (1970).
3. Constituent Power, Amendment and Basic Structure of the Constitution: A Critical Reconsideration, Dietrich Conrad, Delhi Law Review (Vol. 6&7, pp. 1-23) (1977-78).

Prof. (Dr.) Sanjay Jain is the officiating Principal at ILS law college, Pune. He is the co-editor of the book “Basic Structure Constitutionalism: Revisiting Kesavananda Bharati” . He is a disability rights activist and takes keen interest in comparative constitutional law and jurisprudence.