[Ed Note: In this post, Prasidh Raj Singh responds to the arguments made by Monika Polzin in her paper titled “The basic-structure and its French and German origins: a tale of migration, integration, invention and forgetting”. You can access the article here and the summary of the paper here. This is a part of our New Scholarship section, wherein 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]

The origin and adoption of the basic-structure doctrine has in many ways developed jurisprudence across the globe. The democratic setup, alongside Courts interpreting and defending the originalism of the Constitution in tune with the changing dimensions of the state and the quasi-federal structure operating in India, is an enduring symbol of a robust and independent judiciary.

The article written by Dr. Polzin is of much relevance in identifying the roots and modes of how the basic-structure doctrine has developed and interpreted by various courts across all jurisdictions.  The article deeply examines the work done by German scholars Carl Schmitt and Dietrich Conrad, as well as that of French scholar Maurice Hauriou.

It is important to note that Schmitt’s work on implied limits on constitutional amendments is deeply examined in the article and his approach to the understanding of constituent power has been highlighted. Schmitt argued that the constituent power is a legal entity that existed outside, alternatively alongside, a constitution and proceeded to explain what constituted the constituent power.  It is pertinent to comment on this unrealistic approach, as saying that the constituent power is constituted by the people or the monarch is rather unacceptable. This reminded me of the Social Contract Theory of Thomas Hobbes wherein certain rights to govern was  conferred on an entity, coupled with the entailing duties and responsibilities. The argument that the formation of a State and the power entrusted with its organs through self-drafted constitutions should also involve the power to amend is more likely acceptable.  However, the constituent power being assigned to the people, as high emphasized by Schmitt, is not a realistic approach, nor is his idea of an almighty constituent power. Dr. Polzin rightly mentioned in her article that these dangerous and illegitimate parts of Schmitt’s theory are currently lost and have not migrated to form part of the basic-structure doctrine adopted by the Indian Supreme Court.

Schmitt also distinguishes between the essential norms of a constitution that form part of the material constitution, and other provisions which does not have the value of constitutional norms but are merely considered as constitutional laws. In my opinion, this is not a correct approach as it deceives the originality of the Constitution. Further, I think that the modalities and use of language that some parts of the Constitution do not have the value of constitutional norms will lead to constitutional distrust and threat to constitutional identity as a whole. The evolution and contours of a constitution should not be discarded on the ground that certain parts do not have constitutional value; rather, the totality of constitutional norms and ethos must be regarded with utmost trust and sincerity. Dr. Polzin also put forward a similar view in her article when she mentions that the basic-structure doctrine protects the core identity of the Indian Constitution as a value in and of itself, as it guarantees democracy and individual freedom.

However, Schmitt’s approach, wherein he mentions that the amending power is not permitted to change those norms that make up the constitution in the material sense is well accepted. Moreover, his argument that the identity and continuity of the constitution as a whole are to be preserved is the right approach and has been adopted, or is still intact, in various jurisdictions. For example, in India, the Apex Court has upheld this point through various judicial pronouncements.  However, the approach taken by Kelsen that there are no material limits on constitutional amendments, wherein he based his argument on the wording of Article 76 of the Weimar constitution, is somewhat dissimilar to Schmitt’s approach. As opposed to Schmitt, Kelsen adopted a straight-line approach by discarding the idea of an almighty and mystical extra constitutional constituent power. This part of the article where Dr. Polzin incorporates the work done by Kelsen and his approach towards the constituent power, vis-à-vis Schmitt’s work, is well organized and explained in the article. 

Schmitt was certainly opposed to judicial oversight and ascribed the role of “Guardian of the Constitution” to the executive branch, namely the president of the Reich. To this point, I am glad to see that Dr. Plozin has rightly incorporated the Lisbon judgment wherein the German Constitutional Court made the connection between constitutional identity and the distinction between constituent power and constituted power; this gives certain clarity on the point of how the identity of the constitution has to be preserved in light of democratic principles. It might be a possibility that Schmitt did not foresee the role of constitutional courts as guardians of the constitution vis-a-vis the executive branch. I suppose, the role of the constitutional court in declaring any amendment as constitutional or unconstitutional requires an elaborate deliberation upon checks on amending power.  

It is also important to highlight that the Indian Supreme Court in, Minerva Mill vs. Union of India, categorically struck down provisions incorporated under Article 368 of the Indian Constitution which empowers the Parliament to amend any part of the Constitution. The extent of changes introduced through the 42^nd constitutional amendment, which was in question in the Minerva Mills case, certainly annihilated constitutional trust and identity. The role of the Court in strengthening constitutional identity as a whole through judicial pronouncements is an effort towards balancing the equilibrium between constitutional identity and constitutional amendments.  

Clause (5) of Article 368 ,which has been held as unconstitutional, had specifically stated that“For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of parliament to amend by way of addition variations or repeal the provisions of this constitution under this article” The wording of the deleted clause (5) reminded me of the view taken by Kelsen when he argued that there are no material limits on constitutional amendments or even a total revision of the constitution.

Regarding the power to amend the constitution, Hauriou’s approach is also different as he focused on special procedures to amend the constitution as compared to ordinary legislation.  He went to the extent of arguing that a total revision of the constitution could be done by a national assembly specifically elected for this purpose. The article very categorically explained the key points identified by Hauriou, such as:

1. The Rule of Law-based approach to the concept of constituent power
2. Essential principles that have a higher rank or legitimacy than the written constitution.
3. Judicial oversight, which implies a constitutional judge having the right to annul unconstitutional amendments
4. The limiting of amending power.

Instead of repeating what Dr. Polzin has already mentioned in her article, it is important to highlight some points mentioned above which are relevant to our present discussion.  The view taken by Carre de Malberg and Leon Duguit again emphasizes on creating a separate constitutional organ to amend and protect the constitution.  The jurisprudence developed through various sources and adoption of work done by many renowned authors is much appreciated but certainly does not give any clarity on the point. There seems to be a lack of clarity coupled with unrealistic assumptions, such as higher principles or almighty constituent power where Schmitt did not specify how the people could act as the constituent power. Certainly this part requires more detailed discussion, which I felt was missing in the article.

It is important to highlight the case of Horatio P. Livermore vs. E.G. Waite wherein it was stated that “The term Amendment implied such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed”. Therefore, the purpose and the objective behind the constitutional amendment must be identified; an aspect which is not covered in Dr. Polzin’s article. The view adopted in the Horatio case that amendments should bring about an improvement or carry out the purpose for which it was framed is of much relevance and should be considered while discussing amendments to the constitution.

The next part of the article covers Dietrich Conrad’s work, wherein it is mentioned that no amendment should abrogate the constitution or effect changes that amount to a practical abrogation or total revision of the constitution. Even partial altercations are beyond the scope of amendment if their repercussion on the organic context of the constitution, as a whole, is so deep and far reaching that the fundamental identity of the constitution is longer apparent.

By this time, the idea of the basic-structure doctrine and what constitutes constitutional norms is clear to the extent that constitutional identity must be upheld at all costs vis-à-vis amending powers as part of the same compartment and cannot understood in isolation. I think that the constitutional trust conferred upon the Parliament entails a sense of responsibility and reliability that is expected to be practiced by them before making any change in the constitution; this is what Conrad’s writing also stressed upon and which is lucidly covered by Dr. Polzin in her article. 

The next part of the article is, what I would call, reminiscing the landmark and historical milestones of the Indian judiciary in the context of the basic- structure doctrine. The tale started from Shankari Prasad, moved towards Golaknath and finally settled the law and scope of amending power under Article 368, by a narrow majority of (7:6), in Kesavananda Bharati . It was highlighted that the word “amendment” in Article 368 of the Indian Constitution does not include the right to repeal, or alternatively, to destroy the Constitution’s identity, i.e., the basic structure.  Dr. Polzin rightly included the observations made by Justice Khanna that the word “amendment” postulates that the old constitution survives without loss of its identity despite the change and continues even though it has been subjected to alterations. As a result of the amendment, the old constitution cannot be destroyed.

Many new terminologies have been propounded to protect constitutional identity such as solemn document, precious heritage, basic structure, framework of the old constitution, structural interpretation, basic foundation and so on. The length and mode in which the Courts have interpreted and examined the ambit and scope of Article 368 shows the tremendous amount of responsibility they have towards the constitution. Dr. Polzin rightly incorporated the observation made by Justice Sikri in Kesavananda Bharati that the basic-structure doctrine is also meant to prevent abuse of parliamentary power. Justice Sikri stated that if a political party with two-third majority in Parliament for a few years could so amend the constitution so as to debar any other party from functioning, establish totalitarianism, enslave the people, and after having effected these purposes, make the constitution unamendable or extremely rigid, then it would bring about an extra-constitutional revolution.

The article carefully incorporated the relevant discussion so as to correctly project the proposition and law propounded by the Supreme Court in Kesavananda Bharti. The jurisprudential approach and acceptance of the basic-structure doctrine helped to mitigate unconstitutional amendments. The presence of Article 368 does not allow Parliament to alter the basic-structure of the constitution, but rather to amend the Constitution to keep in line with the constantly progressing & transforming needs of society, without losing its identity.

Mr. Prasidh Raj Singh is a faculty at the National Judicial Academy, India (joined in 2015) and is involved in structuring and coordinating several programs on constitutional law, criminal law, commercial law, GST, cybercrimes, etc. for judges at various levels at the Academy.  He is additionally designated as the Public Information Officer for the Academy.